Terms and Conditions for EVINAR Online
(Last modified: October 1st, 2023)
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services shall be governed by these Terms and Conditions.
1. Definitions
1.1 In these Terms and Conditions:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
"Agreement" means a contract made under these Terms and Conditions between the Provider and the Customer;
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
"Business Day" means any business day other than a public holiday in Slovenia;
"Business Hours" means the hours of 09:00 to 15:00 Central European Time (CET) on a Business Day;
"Charges" means the amounts for purchased services based on price list;
"Customer" means the person or entity identified as such in the Services Registration Form;
"Customer Data" means all data uploaded to or stored on the Platform by the Customer; excluding analytics data relating to the use of the Platform and server log files;
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding Personal data with respect to which the Provider is a data controller;
"Customer Administrator" means the person who is selected as administrator in EVINAR account.
"Data Protection Laws" means the EU GDPR and all other applicable laws relating to the processing of Personal Data;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Downtime" refers to the period when the "Hosted Services" cannot be used, meaning users cannot log in to the web application.
"Effective Date" means following the Customer completing and submitting the online Services Registration Form published by the Provider on the Provider's website, the date upon which the Provider sends to the Customer a registration confirmation;
"Emergency Maintenance": Refers to urgent and unplanned activities performed by the Provider to address critical issues, such as security vulnerabilities and software errors that can significantly impact the operation, availability, or security of the service.
"EU GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means EVINAR Online services, which will be made available by the Provider to each Customer as a service via the internet in accordance with these Terms and Conditions; Description of service and functionality is available at http://evinar.si. Feature availability depends on subscription package.
"Intellectual Property Rights " means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" means personal data under any of the Data Protection Laws;
"Planned Maintenance": Refers to scheduled and regular activities performed by the provider for maintenance, updates, or upgrades of software, hardware, or infrastructure. These activities are necessary to ensure optimal operation, security, and reliability of the service.
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means VB-Informatika d.o.o., a company incorporated in Slovenia (registration number 1861603 and VAT identification number SI25533126) having its registered office at Bilje 100 B, 5292 Renèe, Slovenia;
"Response Time": Refers to the time between the submission of a user assistance request (e.g., via email, phone, or chat) and the response from a support representative who confirms or responds to the request.
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Service Credit": Refers to an approved credit granted in the form of a partial extension of the subscription period. One (1) day of service credit equals one (1) day of subscription extension and does not constitute a refund of any payments made or to be made.
"Services Registration Form" means an online form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;
"Supported Web Browser" means the latest release of Microsoft Edge and Google Chrome;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time;
"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
2. Term
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 16 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Services Registration Form shall create a distinct contract between the parties.
3. Hosted Services
3.1 The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services by means of the User Interface and the API for managing processes in wine cellar in accordance with the Documentation during the Term.
3.2 The licence granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:
(a) the API may only be used by an application or applications meeting the requirements set out in API Documentation;
3.3 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.1 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
3.4 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
3.5 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 1 (Acceptable Use Policy).
3.7 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.8 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
3.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue.
3.12 If the Customer pays for the service in advance, the hosting will automatically stop at the end of the purchased period.
3.13 If the Customer is using a trial or demo account, the hosting will automatically stop at the end of the trial period (max 30 days), and the data will then be deleted.
4. Customer Data
4.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, store and transmit the Customer Data to the extent reasonably required for the performance of the obligations and the exercise of the rights of the Provider under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers strictly for this purpose and subject to any express restrictions elsewhere in the Agreement.
4.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.
5. Support services
5.1 The Provider shall make available to the Customer an email-based support.
5.2 Official support is provided in Slovenian and English. We can also provide responses in your native language if our support team is proficient in it.
5.3 Support is offered only to Customer Administrator.
5.4 Our support services are focused on assisting with issues related to EVINAR Online services. We do not provide support for matters outside the scope of EVINAR services, such as maintaining users' local computer equipment or general computer errors. Please note that additional charges may apply if our customer support team assists with false reports of critical issues or issues unrelated to EVINAR Online services. Depending on the nature of the issue and for successful diagnosis and/or resolution, we may require additional information from you or arrange a remote desktop session to troubleshoot.
5.5 Customer support is available during regular business hours from 09:00 to 15:00 Central European Time. Critical issues will be addressed no later than 24 hours after the initial report.
5.6 The Provider shall have no obligation to provide Support Services:
(a) to the extent that the requested Support Services amount to general training in the use of the Hosted Services;
(b) in respect of any issue that could have been resolved by a competent person who had received general training in the use of the Hosted Services;
(c) in respect of any duplicate issues raised by or on behalf of the Customer;
(d) in respect of any issue caused by the improper use of the Hosted Services by or on behalf of the Customer; or
(e) in respect of any issue caused by any alteration to the Hosted Services, or to the configuration of the Hosted Services, made without the prior written consent of the Provider.
5.7 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue.
6. Service level
6.1 The Provider ensures that its service will be available at least 99.0% of the time in a calendar month. If availability falls below 99.0% for a specific calendar month, Customer has the right to initiate a service credit request process. Service credits will not be approved in the following cases:
a) Planned Maintenance: Unavailability due to planned or anticipated maintenance.
b) Account Status: Unavailability while your account is not in good financial standing or when you violate our terms.
c) Force Majeure: Unavailability due to circumstances beyond our control, such as actions of any governmental authority, war, embargo, fire, flood, or unavailability or delay by telecommunications or internet providers, and the like.
d) Software Abuse: Any unavailability resulting from your abuse of the software.
6.2 Maintenance will be attempted during low-usage hours based on the average usage of our customers. We will notify you at least 48 hours in advance of the start of work. We reserve the right to occasionally perform emergency maintenance, for which we will notify you less than 48 hours in advance.
6.3 Service Outage or Failure: If you suspect that the solution is not available or is not functioning correctly, you must notify us immediately by email, but no later than 3 business days after the presumed service outage. You must provide the following information:
a) User account email address,
b) Your organization's code,
c) Your contact information,
d) Date and start time of the outage, and
e) Brief description of the issue.
Your request is considered filed when you receive written confirmation and a case number from the provider. We will notify you when the request is resolved. In case of denial, the notification will include the reason for denial.
6.4 Service Credit Request Process: To initiate the service credit request process, please contact us within seven (7) business days after the end of the outage or unsuccessful service for which you are requesting a service credit.
The Provider will review your request and notify you of the outcome via email. If approved, we will issue a service credit to your EVINAR Online account.
Please note that non-cooperation with us during the issue resolution process and the service credit request process may invalidate your service credit requests. Also, please be aware of the following:
a) Multiple service credits will not be granted within the same period.
b) Failure to meet multiple criteria within a specific time will result in only one service credit.
c) The total number of all service credits for all failures occurring in any calendar year must not exceed 30.
d) Service credits cannot be received in the form of payment refunds.
e) The current subscription is extended by 1 day for each service credit received.
7. External data
7.1 EVINAR offers data import from external sources (e.g., metadata about vineyards such as size, elevation, geolocation, map plotting points, etc.). These data are available for specific regions only. We have compiled this data from various sources to facilitate easier data entry into the application.
7.2 External data may be incomplete, inaccurate, or outdated. The Customer is responsible for verifying the correctness and appropriateness of such data and for any consequences that may arise from their use within the Application.
7.3 The Provider is not liable for any problems, errors, or data loss resulting from the use of external data. The use of external data is entirely at the Customer's own risk.
7.4 The Customer agrees not to make any claims or hold the Provider liable in relation to external data, including claims for damages or loss of profits.
8. Charges
8.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
8.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
8.3 The Provider may elect to vary prices by giving to the Customer not less than 30 days' written notice of the variation.
9. Payments
9.1 The Customer must pay the Charges to the Provider in advance of the period to which they relate.
10. Distance contracts: cancellation right
10.1 This Clause 10 applies if and only if the Customer enters into the Agreement with the Provider as a consumer - that is, as an individual acting wholly or mainly outside the Customer's trade, business, craft or profession - where the Agreement is a distance contract within the meaning of the Consumer Contracts.
10.2 The Customer may withdraw an offer to enter into the Agreement with the Provider at any time; and the Customer may cancel the Agreement entered into with the Provider at any time within the period:
(a) beginning when the Agreement was entered into; and
(b) ending at the end of 14 days after the day on which the Agreement was entered into, subject to Clause 10.3. The Customer does not have to give any reason for the withdrawal or cancellation.
10.3 The Customer agrees that the Provider may begin the provision of services before the expiry of the period referred to in Clause 10.2, and the Customer acknowledges that, if the Provider does begin the provision of services before the end of that period, then:
(a) if the services are fully performed, the Customer will lose the right to cancel referred to in Clause 10.2; and
(b) if the services are partially performed at the time of cancellation, the Customer must pay to the Provider an amount proportional to the services supplied or the Provider may deduct such amount from any refund due to the Customer in accordance with this Clause 10.
10.4 In order to withdraw an offer to enter into the Agreement or cancel the Agreement on the basis described in this Clause 10, the Customer must inform the Provider. To meet the cancellation deadline, it is sufficient for the Customer to send its communication concerning the exercise of the right to cancel before the cancellation period has expired.
10.5 If the Customer withdraws an offer to enter into the Agreement, or cancels the Agreement, on the basis described in this Clause 10, the Customer will receive a full refund of any amount the Customer paid to the Provider in respect of the Agreement, except as specified in this Clause 10.
10.6 The Provider will refund money using the same method used to make the payment, unless the Customer has expressly agreed otherwise. In any case, the Customer will not incur any fees as a result of the refund.
10.7 The Provider will process the refund due to the Customer as a result of a cancellation on the basis described in this Clause 10 without undue delay and, in any case, within the period of 14 days after the day on which the Provider is informed of the cancellation.
11. Data protection
11.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
11.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
11.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of application users and grape suppliers of the following types: user account data, supplier data for invoicing and payments ; and the Provider shall only process the Customer Personal Data for the following purposes: Support and Hosted service upgrades. Details of data by modules:
a) Module Administration:
(i) Categories of individuals: Application Users (employees and associates of the customer)
(ii) Types of special data: Name and surname, email, phone, login passwords for the application
b) Module: Purchase of grapes
(i) Categories of individuals: Grape Suppliers
(ii) Types of special data: All personal data for which the legal basis is invoicing to customers or the receipt of invoices from suppliers; All personal data for which the legal basis arises from the purpose of performing tasks as an employee for the employer;
c) Module: Billing and Payments for purchased grapes
(i) Categories of individuals: Grape Suppliers
(ii) Types of special data: All supplier data required for invoicing and payment to suppliers, data from the contractual relationship with the supplier.
11.4 The Provider shall only process the Customer Personal Data during the Term and for not more than 90 days following the end of the Term, subject to the other provisions of this Clause 11.
11.5 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
11.6 The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
(a) the Provider may transfer the Customer Personal Data internally to its own employees, offices and facilities in Slovenia and EU, providing that such transfers must be protected by appropriate safeguards, namely secured connections, encrypted storage and secured logins;
(b) the Provider may transfer the Customer Personal Data to its third-party processors in the jurisdictions identified elsewhere in this Clause 11 and may permit its third-party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein;
(c) the Provider may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data;
11.7 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
11.8 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
11.9 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
11.10 The Provider shall implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
11.11 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 4 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days' written notice to the Provider, providing that such notice must be given within the period of 7 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 11.
11.12 The Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the following categories: cloud hosting providers and payment processors.
11.13 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
11.14 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.14.
11.15 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay.
11.16 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 11. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.16.
11.17 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that requires storage of the relevant Personal Data.
11.18 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
11.19 Currently used sub processors:
a) Microsoft Azure for hosting EVINAR Online databases and application servers ( General Data Protection Regulation (GDPR) | Microsoft Learn , Licensing Documents (microsoft.com) We are using Microsoft data centres inside EU.
b) Stripe for payments ( Data Processing Agreement between Stripe and Stripe User )
12. Warranties
12.1 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
12.2 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
13. Acknowledgements and warranty limitations
13.1 The Customer acknowledges that complex software is never wholly free from errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from errors and bugs.
13.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
13.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in Documentation; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
13.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
14. Limitations and exclusions of liability
14.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party's statutory rights will not be excluded or limited by these Terms and Conditions, except to the extent permitted by law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
14.3 The Provider will not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
14.4 The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.
14.5 The Provider will not be liable to the Customer in respect of any loss of revenue or income.
14.6 The Provider will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
14.7 The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
14.8 The Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
14.9 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 1-month period preceding the commencement of the event or events.
14.10 The aggregate liability of the Provider to the Customer under the Agreement shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 6-month period preceding the commencement of the event or events.
15. Force Majeure Event
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
16. Termination
16.1 Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination.
16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
16.3 Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement)]; or
(d) if that other party is an individual:
(i) that other party becomes incapable of managing his or her own affairs as a result of illness or incapacity; or
(ii) that other party is the subject of a bankruptcy petition or order,
and if that other party dies then the Agreement shall automatically terminate.
17. Effects of termination
17.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 9, 11, 14, 17, 20 and 21.
17.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.
17.3 Within 30 days following the termination of the Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
without prejudice to the parties' other legal rights.
18. Notices
18.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) sent by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server;
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
19. Subcontracting
19.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.
20. General
20.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
20.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.3 The Provider may vary the Agreement by giving to the Customer at least 30 days' written notice of the variation. Subject to this, the Agreement may only be varied by a written document signed by or on behalf of each of the parties.
20.4 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any third party - providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
20.5 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
20.6 Subject to Clause 14.1, a Services Registration Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Registration Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
20.7 The Agreement shall be governed by and construed in accordance with Slovenian law.
20.8 The courts of Slovenia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
20.9 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
21. Interpretation
21.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
21.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
21.3 References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
21.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Schedule 1 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of http://evinar.si, any subsite (*.evinar.si), successor website, and the services available on that website or any successor website (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to VB-Informatika d.o.o. (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Marketing and spam
6.1 You must not use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
7. Harmful software
7.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
7.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.