General Terms and Conditions of Ektaco

DEFINITIONS
1. Contract means a contract between Ektaco AS (hereinafter Ektaco) and Client (hereinafter also as Party or jointly as Parties) for the licensing of cash register, working time or access control systems or the provision of server, lease, contracting, maintenance or consultation services, or any other contract between the Parties, including all their annexes, that are subject to these general terms and conditions and additional conditions.
2. Products mean Ektaco’s products and services either developed or supplied by Ektaco, including software, hardware, interfaces and support services provided in connection with their operation.
3. Client means a legal entity who enters into a Contract with Ektaco for the supply of products and services as listed in paragraph 1.1.
4. End customer means a customer of the Client for whom personalised information (like name, e-mail address, phone number) has been entered in the Product.
5. Terms and Conditions (T&Cs) mean these general terms and conditions of Ektaco.
6. Conditions mean any additional conditions for the use of Ektaco’s products and services that are set out in writing either in Contracts or on invoices made out by Ektaco or in e-mail correspondence.
7. Price lists mean price lists established by Ektaco for the provision of maintenance and consultation services that are available at https://www.ektaco.ee/kassasusteemid-hinnakiri or https://www.ektaco.ee/labipaasususteemid-hinnakiri
8. Maintenance and consultation services mean services provided by Ektaco for the maintenance and operation of hardware and software.
9. Lease services for Ektaco’s products (lease services) mean services where Ektaco allows the Client to use – for a limited period – a license software developed by Ektaco, and the lease may also include software in accordance with any Conditions.
10. Server services mean services where Ektaco uses a server it administers to host Client’s data that are generated in the course of using Ektacto’s products and services. The terms and conditions for server services are available at https://www.ektaco.ee/kassasusteemid-serveritingimused
11. Parties refer jointly to the Client and Ektaco.
12. Regular business hours for Ektaco’s employees are the hours between 9:00 and 17:00 on business days.
13. User means an employee of the Client (salesperson, cashier) authorised by the Client to use the Product in accordance with its internal rules and regulations.
14. Log means primarily an electronic document where the User indicates for each system malfunction the nature of error situation, the error message, the time of the event and User activity preceding and following the error event.
15. Disruption of sales process means a situation where the User is unable to register sales transactions, print out a cash receipt and/or conduct card payments (applicable only if the disruption in the processing of card payments is not attributable to third parties).
16. Point of sale means a location specified in the Contract where the Client uses Ektaco’s products and services to register the sales transaction. The point of sale may be mobile. A Client may have several points of sale.
17. Maintenance package governs the conditions applicable to Ektaco’s products during and outside business hours. 8/5 means the provision of services during regular business hours whereas 14/7 means the provision of services on all days of the week between 8:00 and 22:00. 24/7 means the provision of services around the clock on all days of the week.
18. Remote maintenance means assistance provided for the use of Ektaco’s products and services via telephone or the Internet by employing relevant technological solutions.

CLIENT’S RIGHTS
1. Get advice or maintenance support for Ektaco’s products and services in accordance with contractual conditions, the maintenance package and these T&Cs.
2. Get new versions and version upgrades of software in accordance with contractual conditions and the maintenance package. On-site installation of versions by Ektaco’s representative is a paid service under the price list and the total cost depends on time spent on site.
3. Request the swift elimination of errors that have occurred in the course of using the Product and get routine maintenance and consultation services within a reasonable time limit. The reasonable time limit depends on the nature of the issue or problem.
4. During regular business hours, get advice or remote maintenance related to the use of essential functions of the Product within two hours. If the notification is sent at the end of business day and there is no disruption of sales process, the provision of maintenance and consultation services will continue in the morning of the following business day. If there is justified need, Ektaco will undertake to correct the error at the Client’s location and at a time specifically agreed. Site visits are a paid service under the price list unless otherwise agreed. If the notification is sent at the end of business day (between 15:00 and 17:00 on Mon-Fri, except for holidays) and there is no disruption of sales process, Ektaco may start or resume work in the morning of the following business day.
5. If the Client is entitled to the corresponding maintenance package under the Contract and there is a disruption of sales process outside business hours or on holidays, require remote maintenance for correcting the error within two hours after relaying the relevant communication to the hotline. As necessary Ektaco will undertake to correct the error at the Client’s location and, subject to specific agreement, outside business hours. Site visits are a paid service under the price list.
6. If Ektaco fails to carry out the work in accordance with contractual conditions, require Ektaco to pay a contractual penalty equal to the Client’s monthly payment. The contractual penalty will not be imposed if the delay attributable to Ektaco occurred because the Client failed to provide the Contractor with information necessary for performing the work, or provide sufficient access for servicing the Product, or the Client has outstanding debts or has failed to make contractual payments in due time.

CLIENT’S OBLIGATIONS
1. Commission work by e-mail or during regular business hours (between 9:00 and 17:00 on Mon-Fri save for holidays) by telephone in accordance with the list of contact persons and their spheres of competency as available on Ektaco’s web page. Outside business hours the calls are diverted to technicians on duty. Urgent work involving an interference or disruption of sales process should be commissioned by telephone to ensure a swift response.
2. Pay the amounts owed to Ektaco as agreed and by the due date indicated on the invoice.
3. Provide Ektaco with information necessary for work by e-mailing such information whenever possible, and allow access to Ektaco’s products and services insofar as required for maintenance. Any error messages, including messages in foreign language, should be entered in the log (save where the message display time is too short to allow writing them down).
4. Inform Ektaco about the replacement of the Client’s contact person or any changes in his/her particulars.
5. File any complaints about the quality of work in writing within five business days of the completion of work. For complaints filed after this time limit Ektaco may require the Client to pay for work done in accordance with the price list.
6. Use equipment and software approved by the Contractor.
7. Pay for Ektaco’s products and services either in like with the Contract (monthly subscription) or, if additional services are commissioned, according to the price list.
8. Paid work includes:
  - on-site maintenance outside regular business hours and additional training sessions (other than brief instruction or consultation over the phone);
  - on-site maintenance directly attributable to the Client’s actions or omissions; for visits to sites outside the City of Tallinn the Client is charged for working time and mileage whilst no mileage is charged inside the city limits;
  - replacement parts for equipment beyond warranty period and any consumable parts;
  - maintenance due to improper or negligent use of the Product;
  - repair of equipment beyond warranty period or not installed by Ektaco.

Ensure the confidentiality of system solutions or passwords learned in the course of work.
Inform Ektaco – in a format which can be reproduced in writing – of the intent to stop using the Product at least 30 calendar days in advance.

EKTACO’S RIGHTS
1. Require the timely payment of all fees and charges in accordance with the terms set out on invoices that have been delivered and not challenged.
2. Make out e-invoices in accordance with the Accounting Act.
3. Refuse to perform work if the Client is in arrears or invoices made out to it are overdue.
4. Refuse to repair equipment not supplied by Ektaco or any maintenance work not directly related to Ektaco’s products and services.
5. Require the Client to enable remote maintenance wherever the technical capabilities allow doing so.
6. Require the replacement of outdated equipment of software if they cannot ensure reasonable functioning of the system.
7. If Ektaco does not agree with the Client’s complaints about the quality of work, it may require an expert assessment of the work to be carried out by approved experts. The Client will cover the cost of such assessment if complaints prove to be unfounded.
8. Increase contractual fees and charges once a year by informing the Client thereof at least 30 days before the effective date.
9. Require payment for work not related to the elimination of errors, including re-installation of licenses or any other installation operations.
10. Restrict the use of software or introduce informative messages in software if the Client has overdue invoices.

EKTACO’S OBLIGATIONS
1. Ensure the availability and accessibility of required resources (specialists, information, means of communication and transport).
2. In the event of any problems related to the Product, ensure the provision of advice, remote maintenance or helpline service within a reasonable time limit.
3. Ensure the confidentiality of system solutions or passwords learned in the course of work.

VALIDITY OF CONTRACTUAL PROVISIONS
1. The T&Cs, the Conditions and the price list apply to all Clients and Users availing themselves of the corresponding service under the Contract.
2. If the T&Cs and the Conditions are in conflict, the Conditions will prevail. If the T&Cs and the Conditions are in conflict with the Contract between the Parties, the Contract will prevail.
3. If the Client allows Users to consume services under a Contract between the Client and Ektaco, it must make sure that Users have read and accepted the T&Cs and the Conditions.
4. Ektaco may unilaterally amend the T&Cs, the Conditions and the price list without the Client’s consent or the need to sign an Annex to the Contract.
5. Ektaco will notify the Client of any changes in the T&Cs, the Conditions and/or the price list that directly affect the conditions of the Client’s Contract for Ektaco’s products or services and/or the monthly invoices at least 30 calendar days in advance.
6. If the Client does not accept said changes, it may terminate its relevant contractual relationship with Ektaco within 30 calendar days of receiving the notification whereby doing so does not relieve the Client from performing all of its outstanding contractual obligations. If the Client does not terminate the Contract within 30 calendar days of the notification it shall be deemed to have tacitly accepted the changes and the amended T&Cs, Conditions and price list will be applied to any and all Contracts between Ektaco and the Client.

ENTRY INTO FORCE AND TERMINATION
1. For each specific service Ektaco and the Client will enter into a Contract that includes the T&Cs, the Conditions and the price list to be signed by both Parties. The Contract enters into force once signed by both Parties. Digitally signed Contracts must be e-mailed to the other Party.
2. The Client may terminate a Contract with an indefinite term at any time by giving a notice of 30 calendar days unless otherwise provided for in the Contract.
3. Ektaco may terminate a Contract unilaterally by giving the Client at least 30 calendar days’ notice if:
  - invoices made out by Ektaco to the Client are at least 30 days overdue;
  - for technical reasons, reasons beyond Ektaco’s control or other good reason, the provision of services under the Contract or the performance of other contractual obligations has become impossible or is materially impeded;
  - it becomes evident that Ektaco cannot be expected to continue the performance of contractual obligations given the prevailing circumstances and the interests of both Parties.

INTELLECTUAL PROPERTY RIGHTS RELATED TO PRODUCTS OF EKTACO
1. The copyright of software for Ektaco’s Products that the Client is allowed to use belongs to Ektaco. Ektaco assures that intellectual property rights related to software belong exclusively to Ektaco and are not shared with the authors or co-authors of the relevant work, and that said rights have not been surrendered to any third parties.
2. By entering into a licensing agreement the Client obtains a non-exclusive license that authorises the Client to use the software without prejudice to Ektaco’s right to license the software to third parties.
3. The client may transfer its software license to third parties – whereby Users are not deemed as such – only subject to Ektaco’s written approval and § 371 of the Law of Obligations Act.
4. The Client may not modify, reproduce or distribute the software or otherwise violate Ektaco’s intellectual property rights.
5. The Client may use the software for an indefinite term as long as it pays the monthly subscription fee. Once the Contract ends the Client may not continue to use the software even if technological restrictions on use have not been imposed.
6. Ektaco may unilaterally suspend or terminate the Contract and impose restrictions on the use of Ektaco’s products and services if the Client’s payment to Ektaco is more than 14 days overdue which is considered a material violation of the Contract.
7. Ektaco may unilaterally suspend or terminate the Contract and impose restrictions on the use of Ektaco’s products and services if Client’s database is used by another Client’s POS system, whose payment to Ektaco is more than 14 days overdue which is considered a material violation of the Contract.
8. If a third party prevents the Client from exercising its rights arising out of the licensing agreement or violates such rights, the Client should immediately inform Ektaco thereof who must then take all necessary measures to allow the Client to use its contractual rights and put an end to the violation of the Client’s rights.

FORCE MAJEURE AND UNSOLVABLE PROBLEMS
1. Non-performance or improper performance of contractual obligations does not constitute a breach of Contract if it is caused by force majeure or an unsolvable problem.
2. Force majeure means circumstances beyond the control of the Parties which either impede or render impossible the performance of contractual obligations and which the Party could not have been reasonably expected to foresee at the time when the Contract was signed or the non-contractual obligation was established, or to overcome such circumstance.
3. An unsolvable problem means a malfunction of standard software, hardware or both combined that obstructs the proper performance of the Contract.

LIABILITY
1. The Client may use the services by itself or allow Users to do so. In any event the Client remains liable to Ektaco for the proper performance of any and all obligations arising out of a Contract entered into with Ektaco.
2. Non-performance is excused and entails no liability if it is caused by force majeure.
3. The Client will be liable to Ektaco for the non-performance or improper performance of its obligations.
4. If the Client has complaints concerning Ektaco’s services or work it must file a request for eliminating any shortcomings in said services or work with Ektaco whereafter the latter will comply with the request.
5. Ektaco will be liable for any direct material damage wrongfully caused to the Client’s hardware provided that there is written proof of such damage. Ektaco will not be liable for any revenue forgone or non-material damage. Ektaco will not be liable for damage due to partial or complete destruction of a database or program.
6. Ektaco will not be liable to the Client or third parties for the consequences of the use of its products or services or any related activities by the Client.
7. Ektaco will not be liable for any delays or disruptions in the performance of its obligations caused by circumstances beyond its control.
8. If there is a delay in the performance of a contractual financial commitment, the aggrieved Party may require the Party at fault to pay a fine for delay of up to 0.2% (zero point two percent) of the outstanding amount for each day overdue until the complete and proper performance of the commitment.
9. Non-performance or improper performance of contractual obligations does not constitute a breach of Contract if it is caused by force majeure or an unsolvable problem.

NOTIFICATIONS
1. Any notifications between the Parties will be communicated to the other Party in writing either by e-mail or registered mail or a letter delivered in person to a representative of the Party who must sign the delivery note, save where such notifications are informative (incl. notifications communicated to the Contractor’s maintenance crew by telephone or orally) and entail no legal consequences for the other Party.
2. The Parties undertake to ensure that their e-mail addresses as listed in the Contract are valid and operational at all times.
3. A notification is deemed delivered if:
  - it has been delivered so that the recipient signs the delivery note;
  - It has been sent by registered mail from a postal office to the address indicated by the other Party and five (5) calendar days have passed since mailing;
  - it has been sent by e-mail and the other Party has confirmed its receipt or three (3) calendar days have passed since mailing.
1. PROCESSING OF DATA
  1. For the purposes of the Contract Ektaco will process the data of the Client and/or its end customers (hereinafter Data) only as an authorised data processor for the purpose of solving the Client’s problems related to using the product. Ektaco does not engage in the collection of data from the Client or Users on its own initiative.
  2. By signing the Contract or ordering a service the Client authorises Ektaco to process the Data.
  3. By signing the Contract the Client declares that it has obtained consent from Users for processing the Data and is authorised to transmit the Data to Ektaco for the purposes of service provision.
  4. The Client will set out the procedures for data collection and processing as well as the related rights and obligations of its employees in its internal rules.
  5. The Client may not prohibit Ektaco from processing the Data as it would render the provision of the service to the Client impossible. Any Data will be entered in the product by the Client who is responsible for their accuracy, use and safe handling.
  6. The Client and Users undertake to make sure that any equipment (computers and the like) operated by the Client to use Ektaco’s services are secure.
  7. Ektaco may use the Data by virtue of legislative provisions and without the Client’s specific consent for the purposes of performing or enforcing the Contract in order to:
    - identify the Client and its representative;
    - provide services to the Client or perform related operations that are necessary;
    - provide maintenance and consultation to the Client and address any malfunctions;
    - calculate service fees or compose and send notifications and invoices to the Customer with regard to the Contract;
    - send notifications concerning the Contract and/or services to the Client insofar as this does not entail using the Data for marketing purposes; the Contract sets out the Client’s e-mail address where newsletters may be sent and the Client can stop receiving them at any time by clicking the relevant button in the newsletter;
    - record business and service operations and engage in the transmission of data for commercial purposes (incl. transmitting to auditors);
    - record and store telephone conversations between Ektaco and the Client or a User for the purpose using the recordings as proof of intent or transactions between the Parties and providing a better service to the Client.
  8. Ektaco may use the following Data for the purposes of the Contract:
    - basic particulars about the Client: Client’s name, registration number, address, e-mail address, name and e-mail address of its representative, User’s name, contact particulars (incl. phone or fax number, registered address, e-mail address);
    - details about Contracts signed and orders placed by the Client, particulars of contact persons, details about invoices and related information (payment particulars or the like);
    - detailed Data about the use of services by the Client and the particulars of terminals employed by the Client for using the services;
    - the list of Data in this paragraph is not exhaustive meaning that Ektaco may process Data not listed in this paragraph for the purpose of performing or enforcing the Contract or providing services.
  9. Ektaco will ensure the confidentiality of Data about the Client and Users. Ektaco may transmit the Data only in cases laid down by the law.
  10. Ektaco will store the Data as long as necessary to ensure contractual performance and the attainment of the objectives of Data use and/or as long as required by the law.
  11. The Client or a User is entitled to get information from Ektaco about the use of Data collected about them in accordance with the extent and procedure laid down by the law.
1. WARRANTY
  1. Ektaco warrants to the Client that its products function in accordance with the user manual and the prescribed specification.
  2. For equipment and products beyond the regular warranty period Ektaco provides at least three-month warranty following repair work (for the repaired component).
1. PAYMENTS AND SETTLEMENTS
  1. The cost of products and services referred to in these T&Cs is set out in the Contract, price lists or a written agreement between the Parties.
  2. >Payment for monthly subscriptions should normally be done by the end of each month in accordance with invoices or e-invoices made out by the Contractor, or by the date indicated on the invoice. Work not covered by prescribed maintenance will be paid by the Client in accordance with Ektaco’s price list.
  3. If the need to adjust the scope of work arises during the performance of the Contract, the Parties will enter into a written agreement for aligning the total cost to the adjusted scope. If the Parties fail to agree on adjusting the scope and cost of work, the Client may withdraw from the Contract while compensating to Ektaco for any and all expenses that Ektaco has incurred in relation to carrying out the work as at the time of withdrawal.
  4. If Ektaco’s representative is requested to make a site visit for no good reason, the Client will cover all costs related to the visit and any work done in accordance with Ektaco’s price list.
1. MISCELLANEOUS
  1. This wording of T&Cs enters into force on 1 January 2020 and renders invalid any previous terms and conditions for Ektaco’s CompuCash maintenance and consultation service, the terms and conditions for the lease of Ektaco’s systems, the terms and conditions for the maintenance of Ektaco’s access control (and/or working time management) systems, and the terms and conditions of Ektaco’s server services.
  2. The Contract will be subject to the laws of the Republic of Estonia.
  3. In all matters not governed by the Contract, the T&Cs or the Conditions, the Parties will be guided by the legislation and principles of good faith and reasonableness.
  4. Any disputes arising in connection with contractual performance shall be settled first and foremost by way of negotiations. Failing an agreement, said disputes will be referred to the Harju County Court.
  5. Neither Party may transfer its rights or obligations set out herein to any third parties without the written consent of the other Party.