Terms and conditions

Terms and conditions

These general terms and conditions of service agreement (hereinafter ‘the Service Terms and Conditions’) constitute an integral part of the service agreements to be entered into in respect of the services to be sold to all persons (the Customer) by Brightspark OÜ.

These Service Terms and Conditions are effective as of 1st of February 2022.

1. General provisions

1.1. The Service Terms and Conditions apply unless otherwise mutually agreed between the Service Provider and the Customer in the Agreement or annexes thereto.

1.2. Depending on the context, the definitions set out in singular in the Service Terms and Conditions may also mean plural and vice versa.

1.3. The headings in the Service Terms and Conditions have been inserted for the convenience of reading only and have no impact on the interpretation of the content of any of the provisions.

1.4. Each clause of the Service Terms and Conditions is interpreted along with other provisions of the Agreement considering the idea and purpose of the Agreement. The invalidity of any individual provision has no impact on the validity, legality or enforceability of the rest of the Agreement.

2. Definitions

2.1. Whenever used in this Agreement, the following capitalised terms have the following meanings:

‘Agreement’ – these service terms and conditions (as updated from time to time), terms and conditions of the subscription form and other terms and conditions related to the Service that the Customer may agree with when prompted to by the Service Provider.

‘Content’ – the information (including text, images, audio and video material), functionality, technical resources, the amount of time and work spent by the Service Provider and Service availability provided by the Service Provider.

‘Customer’ – any person or entity to whom the Service is provided.

‘End User’ – any natural person whom the Customer grants their consent or provides access to the use of the Service.

‘Intellectual Property’ – all existing and future trademarks, service marks, domain names and business names, all the rights pertaining to inventions, design, databases and information subject to business secrecy (including, without limitation, any business information and know-how), copyrights, moral rights and all other assets and benefits commonly regarded as intellectual property, whether registered or not.

‘Party’ – a common term denoting both the Customer and the Service Provider.

‘Registration Data’ – the information provided by the Customer when subscribing to the Service, requesting a change of the Lexi Market standard function or filling in forms via the Service, including the Customer’s full name or business name, registration/company/file/business or personal identification code (or equivalent), permanent residence, address, e-mail address, phone number and such other information as the Service Provider may reasonably request from the Customer.

‘Service’ – web-based software service (SaaS), access to which is provided through this website, availability of the Content and customer support.

‘Subscription Form’ – the online form, via which the Customer can subscribe to the Service or request a change of the licence or such other subscription or modification form as the Parties may fill in for the aforesaid purpose.

‘Software’ – the business software applications included in the Service with features described on this website, including such modifications and replacements thereof as the Service Provider may apply at their discretion from time to time.

‘Service Provider’ – Brightspark OÜ, a company established under the laws of the Republic of Estonia, has its principal place of business in Tallinn, the Republic of Estonia.

‘User Account’ – the account hosted or administered by the Service Provider and provided to the Customer through the Service for enabling the Customer to use the Service.

2.2. ‘Herein’, ‘hereto’, ‘hereof’, ‘hereunder’ and other similar expressions, wherever used in the Agreement, refer to this Agreement.

2.3. This Agreement in its current version and the information published on the website, in so far as it describes the Service and prices, constitute the whole agreement entered into between the Parties and supersede any other agreements, arrangements, and understandings agreed between the Parties in this respect beforehand.

2.4. In the case of conflict or ambiguity between the terms and conditions of this Agreement and any statement, representation or other information published on the website, the terms and conditions described in the Agreement will prevail.

3. Term

3.1. This Agreement takes effect between the Parties from the moment when the Customer has signed the contract, obtained a User Account or started using the Service, whichever is the earliest. The Agreement is entered into for an indefinite term and both Parties have the right to terminate the Agreement under the terms and conditions provided by this document.

4. Licence

4.1. Relying on the Customer’s Registration Data and the terms and conditions provided by this document, the Service Provider grants to the Customer and the latter agrees to a limited non-transferable non-exclusive licence for using this software and the Content prescribed therewith.

4.2. The Software and the Content may only be used for the purpose prescribed for using the Service and in the period when the Agreement is in force between the Parties. The Customer agrees that they have no right to access the Software with the source code or unlocked code or through comments.

4.3. Being guided by the good practice of assignment and sub-licensing, the Parties agree as follows: (i) the Customer has no right to sub-license or assign the benefits or obligations of this Agreement (either in part or in full) and the Customer does not allow the Software or any other part of the Service to become the subject of any charge, lien or encumbrance without the prior explicit consent of the Service Provider; the Service Provider may sub-license, assign, charge or otherwise dispose of their rights and obligations in respect of the Customer provided that they give the Customer reasonable notice thereof.

4.4. The Service Provider hosts the Software in their personal or rented servers.

5. Service

5.1. The Service Provider provides the Customer with the Service throughout the term of the Agreement with commercially reasonable efforts in accordance with the licence ordered by the Customer.

5.2. The Customer agrees that (i) the Service is universal and has not been designed to meet their individual requirements; (ii) the Service may have technical or other problems from time to time and the Service might not necessarily function uninterruptedly or without errors; (iii) the Service is not fault-tolerant and has not been designed for using for inherently dangerous activities, such as (for example) activities related to ‘main sources of danger’, traffic control or life support systems, for handling hazardous substances or for other activities where the failure of the Service could lead to death, bodily injury or environmental damage.

5.3. The Service Provider has agreed to provide high-quality user support and endeavours to respond to most of the questions posed to the customer support within 3 working days. However, the Service Provider does not guarantee the exact time during which the support is provided.

5.4. The Service (including the Software and Content) is provided in its existing and available form.

5.5. The Customer chooses and uses the Service on their own responsibility, and the Customer and the End User are liable for the exposure to, down- and upload, transmission and possession of the information, programmes or other objects that they reach through or due to the Service.

5.6. The Service Provider is not required to enhance, modify or replace any part of the Service or continue developing or releasing new versions thereof. The Service Provider is not liable for the functioning of the third-party software solutions used when using the Service. The Service Provider has the right to monitor and save the use of the Service by the Customer.

5.7. The standard functionality and the specifics of the software is described on the product website https://lexi.market/solutions.

6. Payment

6.1. The Customer warrants that, by subscribing to the ordered licence, they agree to the fees, prices, and settlement periods as (i) described in the signed contract, and (ii) updated from time to time in accordance with the terms and conditions of the Agreement.

6.2. The Service Provider may enhance or otherwise modify the Service for additional fees and may modify it with a term of 30 days for advance notice. If the Customer does not agree with the respective modifications, they will have the right to give up ordering the licence by terminating the use of the Service.

6.3. The Service is paid for in advance. The Service Provider issues an invoice on the first day of the settlement period. Customer has the obligation to pay the within 14 days by a bank transfer. The Customer agrees that late payment may result in the suspension of the Service or termination of the Agreement.

6.4. If the Customer gives up or modifies the licence or terminates the Agreement before the expiry of a current payment period, the Customer will not be refunded any of the payments relating to that payment period.

6.5. Advance payments for future payment periods are not subject to refund.

6.6. All the fees and prices are exclusive of value added tax, sales tax, and other encumbrances. The Customer assumes sole liability for all the taxes and other encumbrances that may be applied to purchasing or using the Service.

7. Obligations of Customer

7.1. The Customer must be a person (either natural or legal), or an entity with passive legal capacity.

7.2. All the Registration Data provided by the Customer must be true, accurate and up-to-date, and the Customer agrees to promptly correct any Registration Data that become outdated or incorrect. The Service Provider may, but is not required to, verify the Customer’s Registration Data and may rely on them without any verification.

7.3. The Customer must follow all the laws, regulations and orders applicable to the Customer upon using the Service.

7.4. The Customer represents and warrants to the Service Provider that the Customer has the right to all the information (including the text, images, audio-visual material and other content) that they upload, transmit or store via the Service.

7.5. The Customer warrants that neither they nor their End Users use the Service for transmitting unsolicited information or for uploading, transmitting, sending, running or storing harmful codes, malware or materials of illegal content.

7.6. Any of the Customer’s materials that conflicts with the provisions of this Agreement may be removed, prohibited and/or destroyed by the Service Provider at their discretion without any warning or notice.

7.7. Without excluding or limiting any of the Customer’s statutory obligations, the Customer warrants to the Service Provider that the Customer will not attempt and will not allow their End Users to attempt to (i) modify, reproduce or prepare derivative works from, or decompile, reverse engineer or otherwise endeavour to derive a source code from the Software or another part of the Service; (ii) remove, alter, hide or obscure any copyright notice, trademark or notice of any other right of ownership embedded in, appearing on or otherwise pertaining to the Service; (iii) create or attempt to create any product or service that is similar or otherwise competitive to the Service or that the Service Provider intends to create, warrant or approve; (iv) subscribe to the Service or modify the Customer’s subscription by automated means.

8. Obligations of representative

8.1. Each person subscribing the Customer to the Service or otherwise representing the Customer in entering into the Agreement personally warrants to the Service Provider that they are authorised to represent the Customer and that the Agreement entered into with the Customer is binding.

8.2. Each such representative hereby ensures to the Service Provider, and the latter warrants, that if this Agreement proves to be void due to the representative’s lack of authority or if it appears that the representative has entered into this Agreement with a non-existent Customer, it will be deemed that the representative entered into the Agreement on their own behalf and the Agreement will take effect (ab initio) between the Service Provider and the aforesaid representative.

9. User Account, username and password

9.1. The Customer assumes sole and full liability for the operations performed with their User Account and must immediately notify the Service Provider of any breach of security or unauthorised use of their User Account.

9.2. The Parties agree that with respect to the Customer’s username and password the Customer is liable for (i) maintaining the confidentiality of their username and password, (ii) any and all actions by the persons whom the Customer gives access to or who otherwise use their username and password, and (iii) any and all consequences of use or misuse of the username and password.

9.3. The Service Provider assumes no liability for any loss, damage or other consequences caused by the use of the Customer’s User Account, username and password by an unauthorised person.

10. Intellectual Property and economic rights

10.1. The Customer is aware that all the Service-related Intellectual Property belongs to the Service Provider. The Customer has no right, title or interest in respect of the aforesaid Intellectual Property set out above or in respect of the Service in general, except for the limited right of use explicitly provided by this Agreement. Any other rights not explicitly provided herein are deemed ineffective.

10.2. Entry into or provisions of the Agreement or breach of any of the obligations of the Parties set out in the Agreement cannot be interpreted as granting the Customer the right to hold or acquire an economic right (incl. security interest, pawn or any other right of security) to items or assets belonging to the Service Provider.

10.3. The Service Provider respects the Intellectual Property of others and may, for appropriate reasons and at their discretion, disable or terminate the use of such a User Account that breaches the rights of others.

11. Disclaimer of warranties

11.1. The Service Provider may withhold in full all the terms and conditions, representations and warranties other than those provided by this Agreement (including, without limitation, marketability, fitness for a particular purpose, non-infringement and the terms and conditions that may arise from commercial activities or use).

11.2. The Service Provider does not provide any warranty (i) that the Service meets the Customer’s and End User’s needs or expectations, (ii) that access to and use of the Service is uninterrupted, timely, secure or error-free, (iii) that any defects in the Service are corrected, (iv) that the Service or any means by which the Service is accessed is free of malware or other harmful components; or (v) with respect to any third-party software, content, material, information, environment or other third-party resources or services that the Customer or End User may acquire, use, access or be exposed to.

11.3. Each Party warrants that the other Party has entered into the Agreement relying on the above disclaimers and that the aforesaid disclaimers serve as the main basis for resolving disputes between the Parties.

12. Limitation of liability

12.1. The Service Provider is not liable to the Customer, any End User or any person claiming through the Customer or End User for loss, damage, expenses or other consequences resulting from (i) the use or the inability to use the Service, (ii) the properties of the Service, (iii) the need to procure or the procurement of substitute products or services for the Service or for any product, service or other benefit received, owned, possessed or otherwise used through the Service, (iv) any message or other communication received or transaction entered into through or from the Service, (v) unauthorised access to or alteration of the Customer’s or any End User’s transmissions or data, (vi) the statements or conduct of any person having access to the Service, (vii) any other matter relating to the Service;
regardless of whether the damage is suffered directly or indirectly or is immediate or consequential, and whether the damage arises in contract, tort or otherwise;
provided, however, that this clause does not prevent claims for direct financial loss suffered by the Customer due to the Service Provider’s intentional or grossly negligent breach of the Agreement, and that the total liability of the Service Provider, whether in contract, tort or otherwise in no circumstances exceeds a sum equal to the amount that the Customer has paid to the Service Provider during the twelve months immediately preceding that month in which the breach occurred.

12.2. Any claim that the Customer may have in connection with this Agreement must be filed with the appropriate authorities within one year after such claim arose, otherwise it has expired for good.

13. Force majeure

13.1. No Party is liable for breaching their obligations in circumstances beyond their control, such as, for example, a natural disaster, act of government, war, riots, terrorist attacks, strike, Internet service provider failure or any other circumstance qualifying as force majeure. However, none of the reasons listed above release a Party from their payment obligation.

14. Indemnification

14.1. The Customer defends, or at its option resolves (without causing any damage or expenses to the Service Provider), any third party lawsuit or other proceedings brought against the Service Provider and caused by or otherwise arisen out of the Customer’s or any End User’s (i) use of the Service, (ii) content, (iii) misuse of personal data, or (iv) infringement of Intellectual Property law.

15. Data protection

15.1. The Customer agrees that the Service Provider may collect information about the Customer and End Users (i) upon the Customer’s entry into the Agreement or change of the licence (the information entered on the Subscription Form); (ii) when they visit the Service Provider’s website (session information, browsing history at the Service Provider’s website, IP address, certain software and hardware attributes) or fill in forms via the Service (the information thus provided); (iii) when they access or use the Service (the location, manner, purpose and duration of such use or access); and (iv) when they otherwise knowingly make the information available to the Service Provider (the information disclosed by the data subjects). When visiting the Service Provider’s website, ‘cookies’ may be stored on the visitor’s device.

15.2. The Customer agrees and warrants to the Service Provider that the End Users agree (i) to the processing of their personal data (following the Data Protection Act in force) by the Service Provider for the purpose of performing their obligations provided by the Agreement and, if necessary, enforcing their rights hereunder; (ii) that their personal data may be processed in the country of their domicile as well as outside it; (iii) that the Service Provider will not disclose their personal data to any third party besides the members of their corporate group if this is not in conflict with law or the performance of this Agreement.

15.3. The Service Provider warrants to the Customer that commercially reasonable measures will be taken to ensure that personal data are processed securely. The Service Provider has the right to use the Customer’s data collected by the Service Provider when providing the Service inter alia for the purpose of machine learning.

15.4. The Service Provider is not required to monitor or access customer accounts, but may do so if there is a sufficient reason therefor (for example, in order to prevent illegal or harmful activity or to provide customer support).

15.5. If an End User or the Customer chooses to join the Service Provider’s newsletter, the Service Provider may use their personal data to send them information about products, services, advertising and events that the Service Provider thinks may be of interest to them. Upon request, any such subscription can be cancelled.

15.6. The Service Provider does not have the right to sell (or pass for free) the customer data or information that has been aggregated from the data to any third party in any commercial or non-commercial matter. The Service Provider is not allowed to publicly present the customer data without such written permission between the counterparts.

16. Modification and suspension

16.1. The Service Provider may modify the Service or any part of the Agreement at any time at their discretion and is required to notify the Customer of such modifications when the Customer logs on to their User Account. If the Customer does not agree with the modifications, they have the right to suspend the use of the Service. Otherwise, such modifications will take effect with respect of the Customer via the previously mentioned notification.

16.2. The Service Provider has the right to discontinue all or any part of the Service notifying thereof 30 days in advance.

16.3. The Service Provider has the right to immediately suspend the provision of the service described in this Agreement in part or in full if a court order, decision of representatives of state authorities or a competent regulatory authority request that the obligations hereunder be suspended either temporarily or permanently.

17. Termination

17.1. Either Party may cancel the Agreement at any time, notifying the other Party thereof 30 days in advance.

17.2. If the other Party discontinues the Agreement due to a fundamental breach, no advance notice of termination of the Agreement must be given (i.e., the Agreement is cancelled immediately).

17.3. A fundamental breach of the Agreement is (inter alia) deemed to have occurred if: (i) a Party is in breach of any of their obligations hereunder and fails to terminate or remedy such breach within two weeks after the other Party has issued a precept therefor, describing the breach and requesting termination or remedy thereof; (ii) a Party is in constant breach of any of their obligations hereunder and the breach cannot be remedied; (iii) a breach by one Party deprives the other Party of the whole benefit or a significant part of the benefit, which the latter was entitled hereunder.

17.4. Any discontinuance of the Agreement may not prejudice the Parties’ rights and remedies that have accrued in connection with the discontinuance.

17.5. The Customer understands and agrees that in the case of any termination of the Agreement (i) all rights that the Customer has been granted hereunder will terminate; (ii) the Customer suspends all the activities authorised by the Agreement; (iii) the Customer must immediately pay all the amounts due to the Service Provider hereunder; (iv) the Customer will receive no refund or exchange for the time not used during the settlement period, for any licence or subscription fee, any content or data associated with their account, or for anything else.

18. Governing law and resolution of disputes

18.1. Any disputes and disagreements arising from the performance of the Agreement are resolved by way of negotiations.

18.2. If the negotiations fail, the disputes will be subject to resolution in the Harju County Court.

18.3. The Agreement is governed by the law of the Republic of Estonia.

19. Miscellaneous

19.1. The Customer hereby consents to the Service Provider’s inclusion of the Customer’s name in a customer list if the Customer is not the sole customer listed.

19.2. Any amount hereunder not paid when due is subject to default interest at the rate of twenty percent (20%) per year until the payment is received.

19.3. Any conversion and remittance charges relating to any payment hereunder are borne by the remitter (not the beneficiary).

19.4. Having sufficiently considered each term of the Agreement both individually and in conjunction with other terms, each Party hereby confirms to the other that they find the Agreement fair and not oppressive or harmful in any respect.

19.5. The Customer, who is situated in the European Union and/or processes the personal data of natural persons in the European Union, hereby agrees to not store personal data in the Service or forward personal data through the Service without a previously signed Data Processing Addendum (DPA) between the Parties. If no Data Processing Addendum is signed between the Parties, the Customer will be fully (100%) responsible for processing data via the Service or other related Products or Services offered by Brightspark.