GENERAL CONDITIONS OF THE AGREEMENT OF PROVISION OF SERVICES OF SUBSCRIPTION OF THE PRODSMART PLATFORM
THE PRESENT GENERAL CONDITIONS ARE ONLY APPLICABLE TO THE PROVISION OF SERVICES OF SUBSCRIPTION OF PRODSMART PLATFORM CONTRACTED BY CORPORATE AND/OR PROFESSIONAL COSTUMERS.
1.1. The present General Conditions, as well as the Particular Conditions of Implementation of the Prodsmart Platform (hereinafter referred to as Agreement) aims to regulate the terms and conditions of the provision, by Prodsmart, Informática Lda., with registered office at Parque Industrial de Arraiolos, Rua A, lote 8, 7070-043 Arraiolos, registered at the Lisbon Commercial Registry Office, with the single registry and legal person number 507 418 921, with a share capital of 5001 euros (hereinafter referred to as Prodsmart) to the client (hereinafter referred to as Client) of the services of implementation of the Prodsmart platform, intended for the collection, monitoring and management of the information regarding the existent production line in the Client’s premises and by this directly provided (hereinafter referred to as Service).
1.2. The Service is also governed by Particular Conditions and/or by one Proposal, which intend to set forth the terms and conditions exclusively applicable to the provision of the same to the Client, which, after the approval of the Client, shall be integral part of the present General Conditions.
2. CONTRACTING, INSTALLATION AND ACTIVATION OF THE SERVICE
2.1. The contracting of the Service means the acknowledgement and corresponds to the prior acceptance, by the Client, of the provisions set forth on the present General Conditions and on the Particular Conditions, as well as of the provisions set forth on the Proposal, if applicable.
2.2. In case of face-to-face contracting or through qualified electronic signature, the date of accession to the present General Conditions and to the Particular Conditions, as well as to the Proposal, if applicable, corresponds to the date of the signature of those by the Client.
2.3. In case of contracting through the use of distance communication means, the date of accession to the present General Conditions and to the Particular Conditions, as well as to the Proposal, if applicable, corresponds to the date of their acceptance by the Client, through the activation of the functionalities provided by Prodsmart in the distance communication mean concerned.
2.4. The accession to the Service, as well as any request related to the latter, is performed by the Client. The Client may appoint, eliminate or modify representatives, who will be, for all legal and contractual effects, the representatives of the Client, that is to say, the persons with powers to act, under the contractual execution, in the name and on behalf of the Client.
2.5. In case the accession to the Service is not directly performed by the Client, but by the persons with powers to act in his name and on his behalf, this persons become entirely liable for obtaining, before the Client, the authorizations which are eventually necessary to the contracting and/or to the provision of the Service, and Prodsmart shall not be liable for the nonexistence of those.
2.6. While the Agreement is in force, Prodsmart may provide additional services, at request of the Client, namely but without limitation, the increase of the number of licenses. The additional services shall be part of the Agreement, which, therefore, will be deemed modified accordingly.
3. ACCESS CODES
3.1. For the access to the Service, the Client shall proceed with his register, through an identification code (Username) and/or an access code (Password).
The codes are the Client’s identification elements, and, thus, they are for knowledge and exclusive use of the latter and they are non-transferable, and the Client should ensure and protect, in any circumstances, their confidentiality, including not disclosing them to third parties and not operating in conditions which allows their decoding or copy.
3.2. Prodsmart shall not be liable for any losses or damages caused by misuse of the codes referred to in the preceding paragraph and which cannot be attributable to Prodsmart, directly or indirectly, with wilful misconduct, gross negligence or slight negligence, and the use of the Service by third parties through the Client’s codes is deemed to be performed by the Client, in the absence of the proof of the contrary.
4. SERVICE’S QUALITIES, MAINTENANCE AND TECHNICAL SETTINGS
4.1. Prodsmart undertakes to provide the Service on a regular and continuous basis, except when it is not possible for reasons regarding to the unpredictable overcharge of the network or of the system in which the Service is supported or due to force majeure situations (unpredictable or extraordinary situations external to Prodsmart and which cannot be controlled by the latter), in which case Prodsmart is not obliged to guarantee minimum levels of quality of the Service. Prodsmart shall not be liable for an eventual interruption of the Service due to a failure in the supply of the internet and/or electricity service.
4.2. Given the innovative nature of the Service and the technological advances that it is likely to suffer, the Client expressly acknowledges and accepts that the mentioned Service may be subject to continuous improvements, hence, Prodsmart may change its technical settings whenever it is deemed convenient in order to adapt the Service to eventual technological developments or to the Client’s needs.
5. SUSPENSION OF THE SERVICE
5.1. Prodsmart may suspend, totally or in part, the provision of the Service, in the following cases:
a) use of the Service for illegal activities;
b) culpable and serious violation of the contractual obligations by the Client;
c) fraud situation; and
d) lack of monthly or annual anticipated payment, pursuant to number 14.3. below.
5.2. With exception of the situation set forth in paragraph d) of the preceding number, where the suspension of the Service is immediate, in the other cases provided for in the preceding number, the suspension of the Service will be made after prior notice, except for unforeseeable circumstances or force majeure situations.
5.3. In the situation described in paragraph d) of the number 5.1., the access to the Service will be restored after the termination of the event which gave rise to the suspension. In the situation described in paragraph b) of the number 5.1., the access to the Service will not be restored in the event of resolution of the Agreement under the provisions of the number 19 below.
6. ACCESS, USE AND SAFETY OF THE SERVICE
The following conditions are conditions of access and use of the Service:
a) accession face-to-face or by distance to the present General Conditions and to the Particular Conditions, as well as to the Proposal, if applicable;
b) use of the Service in accordance with the present General Conditions, with the Particular Conditions, as well as with the Proposal, if applicable, and with the legal and regulatory provisions in force;
c) the Service is for personal use and cannot be transferred to third parties or used for commercial exploitation; and
d) the intellectual property rights owned by Prodsmart must be respected and the illegal or unauthorized use of them cannot be made.
7. IMPLEMENTATION OF THE SERVICE
According to the provisions of the Proposal and/or the Particular Conditions, the implementation of the Service may have five (5) distinct phases:
a) analysis and determination of the implementation plan of the Service, taking into account the Client’s objectives and needs;
b) Installation of the hardware which is necessary for the implementation and the provision of the Service, i.e. the tablets and equipment needed for its distribution, as well as for the distribution of the access points (hereinafter jointly referred to as Equipment);
c) Configuration of the Service’ support software (hereinafter referred to as Software);
d) Training and start of the Service; and/or
e) Provision of support services to the Client.
8. INSTALLATION OF THE EQUIPMENT
8.1. If the installation of the Equipment is provided for in the Proposal and/or in the Particular Conditions, said installation will seek:
a) to ensure that the tablets are installed on the WiFi coverage area and close to an electrical outlet;
b) to protect the tablets against drops and shocks and prevent them to be removed from the location defined by Prodsmart;
c) that the location of the tablets is the most suitable taking into account the size of the surrounding area, the number of users per tablet and the frequency of their use.
d) to obtaining the distribution of the access points required to allow a maximum WiFi signal coverage and good reception by the installed tablets.
8.2. If it is set forth in the Proposal and/or in the Particular Conditions, the distribution of the access points is defined by Prodsmart taking into account the size and architecture of the Client’s premises, as well as the characteristics of the access points.
9. SOFTWARE CONFIGURATION
9.1. According to the provisions of the Proposal and/or of the Particular Conditions, the installation of the Service may involve adapting the Software. For these purposes, Prodsmart will review the existing processes on the Client’s premises, after which Prodsmart will perform the adaptation of the Software, so that the Software can adapt to the latter.
9.2. If it is provided for in the specifications set forth in the Proposal and/or the Particular Conditions, jointly with the adjustment phase, may take place the initial setup of the system, with the insertion of all data needed to start the Service. Among the data to be inserted are the list of Client’s employees, the Client’s products list, the list of job positions for each product and the waste list for each job position.
10. TRAINING AND START OF THE SERVICE
10.1. After all the Software’ configuration process, the Prodsmart platform will be ready to be used by the Client. If the Proposal and/or the Particular Conditions sets forth, Prodsmart will provide to the Client the necessary training services for the start of the platform, which will include the components and the timetable agreed between Prodsmart and the Client.
10.2. As a complement to the training services, a user manual is always available in Prodsmart platform, as well as context help on all screens.
11. SOFTWARE AND COPYRIGHT
11.1. The Software is the exclusively owned by Prodsmart. By entered into this Agreement, the Client does not acquire any rights of ownership over the Software, but only the right to use it, in the scope of the provision of the Service, on a non-exclusive and non-sublicensable basis, while this Agreement is in force.
11.2. The Parties agree, expressly and unreservedly, that Prodsmart will be the holder of any and all intellectual property rights on any adaptation of the Software that is required under number 9.1., which shall be considered original, unique and exclusive property of Prodsmart, which is the exclusive holder of all mentioned rights throughout the world and throughout all duration of those. In accordance with the terms of determining the original ownership of intellectual property rights, Prodsmart may exercise such rights by any of the existing modes of use and exploitation, now known or that in the future will come to be, whether arise from technical development or legislative modification. Prodsmart may, namely but without limitation, use, make available to the public, explore and license the contents, works and results arising from the adaptation and customization of the Software, within the terms that Prodsmart considers appropriate, in particular through its modification, transformation and adaptation, promoting, on Prodsmart’s behalf, all the registers it deems appropriate for the protection and exercise of the intellectual property rights concerned.
11.3. Any amending or modification act, reverse engineer, decompile (except decompilation of parts of the Software necessary to achieve interoperability with other programs, provided that the same is the essential to obtain the information necessary for such interoperability), disassembly and/or reproduction of the Software, by the Client, are strictly forbidden.
12. SUPPORT SERVICES TO THE CLIENT
Prodsmart ensures to the Client a support and a permanent attendance service (helpdesk), for clarification of doubts and communication of breakdowns, which operates 24 (twenty four) hours a day, seven (7) days a week, and that is available through the phone [+351966191874], email [email@example.com] or chat on the Service.
13. CONSERVATION, REPAIR AND SETTING
13.1. The Prodsmart ensures the maintenance and repair of the Equipment supplied by itself to the Client, and used in the provision of the Service, if the Proposal and/or the Particular Conditions provide for the supply, maintenance and repair of the Equipment to the Client.
13.2. Whenever for the purposes of the preceding number is essential to access the local of installation of the Equipment, Prodsmart will agree with the Client the date and time in which Prodsmart will carry out the conservation or repair act.
13.3. The Client, since notified of the planned and agreed visit, is obligated to allow the access of Prodsmart, in order to ensure the conservation and repair of the Equipment.
13.4. Whenever it is convenient to optimize the conditions of the provision of the Service or of the maintenance operations, Prodsmart may remotely reformulate the respective technical settings.
13.5. Prodsmart shall not be liable for damage or malfunction of the Service resulting from failures or lack of maintenance and/or repair of the Equipment, whether the interventions intended for the conservation and/or repairs are not carried out for reasons imputable to the Client, in particular if the access to its premises has not been possible.
13.6. The costs of the intervention, including displacements, will be supported by the Client when the malfunction is directly or indirectly imputable to the Client, or to the users of the Service, and it cannot be considered a consequence of a lawful, regular and diligent use of the Service or of the Equipment. The costs of the interventions motivated by malfunctions of the Equipment owned by the Client will always be supported by the Client, except during the period of the legal guarantee of the Equipment and provided that the interventions are covered by the guarantee conditions of the Equipment.
14. PRICE AND METHOD OF PAYMENT OF THE SERVICE
14.1. The price to be paid by the Client for the provision of the Service corresponds to what is established in the Proposal and/or in the Particular Conditions (hereinafter referred to as Price).
14.2. The unit Price of the configuration, installation and training components of the Service, described in paragraphs b) to d) number7 above, as well as the other components of the Service, will be invoiced by Prodsmart on the date of acceptance by the Client and in accordance with these General Conditions, with the Particular Conditions and with the Proposal, if applicable.
14.3. Pursuant to number 5.1., paragraph d) above, the lack of performance of the anticipated monthly payment or of the anticipated annual payment of the Price, as applicable, will lead to the immediate suspension of the Service. In this case, the access to the Service will only be reinstated after the payment of the Price.
14.4. The payment of the Price, in the form of anticipated monthly or annual payment, may be performed through bank transfer to the account identified in the Proposal and/or in the Particular Conditions or through direct debit.
14.5. In the event of have been provided to the Client, in accordance with number 2.6. above, additional services, such as the increase of the number of licenses, the Price of those services will be invoiced by Prodsmart to the Client on the day of the acceptance by the Client of the amendment to the Particular Conditions. The Price of the additional services will be the Price foreseen in the Particular Conditions.
15.1. The Client undertakes to use the Service and the Equipment in timely and full compliance with the obligations of the present General Conditions and of the Particular Conditions, as well as of the provisions of the Proposal, if applicable.
15.2. Prodsmart is not liable for the losses or damages arising from noncompliance or defective compliance with the contractual obligations, and which cannot be imputable to Prodsmart, with wilful misconduct, gross negligence or slight negligence, not being responsible, namely but without limitation for:
a) damages caused by Client’s fault, or other users of the Service or any third parties, who are not at the service of Prodsmart;
b) noncompliance or defective compliance with the contractual obligations resulting from the occurrence of unforeseeable circumstances or force majeure situations, that is to say situations of extraordinary or unpredictable nature, external to Prodsmart and which Prodsmart cannot prevent or control and which hinder or difficult the compliance with contractual obligations; and
c) damages caused by the provision of services, by any third party in the area of telecommunications, systems integration, installation and hardware operation and management consultancy in the area of process optimization, or others, for the implementation and/or the operation of the Service.
16. RETURN OF THE EQUIPMENT
16.1. If applicable, in case the Client has rented the Equipment to Prodsmart or use the Equipment transferred by Prodsmart, the Client undertakes to deliver to Prodsmart the rented or transferred Equipment in perfect state of conservation, except for the deterioration resulting from normal and diligent use of it, in maximum of fifteen (15) days after the termination of the Service or the replacement of the Equipment.
16.2. In case of breach of the preceding number, Prodsmart reserves the right to invoice to the Client the respective indemnity to offset the damages resulting from such breach.
17. COMMUNICATION BETWEEN THE PARTIES
17.1. All communications made by Prodsmart to the Client shall be written and to the address or to the email address provided by the Client to Prodsmart, and foreseen in the Proposal and/or in the Particular Conditions, and additionally through the Equipment (i.e. tablets) used by the Client, if applicable.
17.2. The Client undertakes to communicate to Prodsmart, in written, any change of the addresses foreseen in the Proposal and/or in the Particular Conditions, within fifteen (15) days, under penalty of the communication be deemed received at the address originally indicated.
17.3. Client’s communications to Prodsmart may be made in written to the address Rua da Prata, n.º 80, 1100-420 Lisboa, or through the e-mail [●], or chat on [●], or verbally by phone +351966191874. The communication through chat or telephone only can be used in the operation of the helpdesk, in order to clarify doubts and to communicate breakdowns.
18. PROTECTION OF PERSONAL DATA
18.1. In order to execute this Agreement, specifically for clients’ management purposes and billing management, Prodsmart will collect, process and store personal data of natural persons, including Client’s legal representatives and employees. In the case of provision by the Client of personal data of natural persons, namely their legal representatives and employees, the Client undertakes to obtain in advance the consent of the data subjects concerned, in order to be able to communicate them to Prodsmart and so that Prodsmart can use and process them.
18.2. In order to exercise the right of access, rectification, cancellation of third parties personal data , which have been provided by the Client, and of opposition, a written application identified with the reference “Data Protection” must be sent, where is entered the respective request, to Prodsmart, Informática, Lda., Rua da Prata, n.º 80, 1100-420 Lisboa, or to the following e-mail firstname.lastname@example.org
18.4. Notwithstanding the processing of the personal data identified in numbers 18.1 to 18.3. above, the provision of the Service to the Client will also require access to personal data, namely of the employees, whose processing is of the Client’s responsibility. Prodsmart, as subcontracted entity to the processing of personal data, under the terms and for the purposes set forth in Law number 67/98 of October 26 (“Personal Data Protection Law”), undertakes to access the personal data concerned in strict compliance with the Personal Data Protection Law, whenever the access to such data is necessary for the execution of the present Agreement.
18.5. For the purposes of the preceding number, the Client and Prodsmart recognize that Prodsmart only act upon Client’s instructions and cannot use the personal data which may have access for different purposes of the provision of the Service and cannot, in particular, transfer them to third parties. Additionally, Prodsmart undertakes to:
a) take all technical and organizational measures appropriate to protect personal data from destruction, accidental or illegal, or accidental loss, alteration, unauthorized disclosure or access, which will ensure the control of the i) entry on the premises ii) data support, iii) insertion, iv) use, v) access, vi) transmission and vii) transport, as provided for in articles 14 and 15 of the Personal Data Protection Law. Such measures shall include, by way of example, measures regarding to hardware, software, recovery procedures and backups.
b) In addition to the maintenance of the personal data during the Service suspension period, the Client hereby consent, because it is of his interest, that Prodsmart, even after the termination of this Agreement, retains the personal data as well as any support or document where these data are included.
c) Keep the confidentiality and secrecy on the personal data to which Prodsmart has access in the scope of the provision of the Service and must ensure that its employees, consultants and/or service providers, who have access and/or knowledge of the processed personal data, are themselves contractually bound by professional secrecy.
d) Notify immediately the Client, in case of, under the law, judicial proceeding or at the request of any regulatory or supervisory authority, it is required to Prodsmart to disclosure all or part of the personal data, in order to the confidentiality of such data be maintained, in the legally allowed conditions, through the jointly ensure of any measures that are necessary.
18.6. The duty of confidentiality and secrecy foreseen in the preceding number should remain in force even after the termination of this Agreement and/or the termination of the performance of the duties of the employees, consultants and/or service providers subject to this duty, under the legal provisions.
19.1. This Agreement may be resolved by either Party in cases of breach of any of the obligations set forth in the present General Conditions and in the Particular Conditions, as well as in the Proposal, if applicable. The declaration of resolution should be notified to the defaulting Party, notwithstanding of the granting of a reasonable period, not superior to thirty (30) days, to the defaulting Party remedy the default.
19.2. The non-defaulting Party shall take the necessary and appropriate measures to remedy the consequences of the breach.
19.3. The resolution of the Agreement does not release the defaulting Party of timely and full compliance with the obligation to indemnify the other Party for the damages, pursuant to the law.
20. AGREEMENT PERIOD AND TERMINATION
20.1. The present General Conditions start to produce its effects on the date of accession to the Service in accordance with the provisions of the paragraph 2.1. to 2.3. above, and are in force throughout the period set forth in the Proposal and/or in the Particular Conditions. If nothing is defined in the Proposal and/or in the Particular Conditions, it is considered that such period is twelve (12) months.
20.2. The Agreement is automatically renewed by the initial agreed term, unless any Party objects to the renewal, in accordance with the provisions of the following number.
20.3. For the purposes of the preceding paragraph, the Client may object to the renewal by written communication with minimum notice of 15 (fifteen) days to the date of the termination of the Agreement.
21. AMENDMENT OF THE CONTRACTUAL CONDITIONS
21.1. Prodsmart may amend the present General Conditions.
21.2. In the case foreseen in the preceding number, the Client will be notified at the email address indicated in the Proposal and/or in the Particular Conditions, or subsequently changed as consequence of the Client communication, with a minimum of fifteen (15) days to the date of entry into force of the new General Conditions. If the Client does not agree with the amendments, the Client has a period of fifteen (15) days to, in written, resolve the Agreement, without any associated penalty, and, otherwise it is understood that the Client accepts the amendment. The mentioned resolution will take effect on the date of the entry into force of the contractual amendments.
21.3. Whenever the contractual amendment is objectively an advantage for the Client, the preceding number shall not be applicable.