Terms of use

These terms of use (“Terms of Use”) apply to your access and use of the services described herein provided by Cellense s.r.o., a limited liability company established under Slovak laws, with its registered seat at Zálužická 1, Bratislava 821 01, Slovak  Republic, company ID No. (IČO): 47 523 697, Tax No. (DIČ): 2023925739, VAT ID (IČ DPH): SK2023925739 registered in the Commercial Registry kept by Bratislava I District Court under Section Sro, Insert No. 94037/B, contact email: cellense@cellense.com (“Cellense”, “we” or “us”).

1 Definitions

1.1 The following terms used in these Terms of Use shall have the following meaning:

Company” means entity which uses the Services (also referred to as “you”);

Confidential Information” means any information about Cellense and/or Services which is not publicly available, or which is labelled as such by Cellense including contents of any agreement between the Party, the Service Agreement, description of Services, payment terms, pricing information, business model, strategy, know-how, customer list, the Intellectual Property and similar with the exception of information already provided in these Terms of Use;

DPA” means a data processing agreement concluded between the Parties pursuant to the Article 28 of the EU general data protection regulation;

Fee” means remuneration for the Services agreed in the Service Agreement comprising of the Monthly Invoicing Option and the Overage Charge;

Intellectual Property” means any work, information, patent, database, trade-mark, code, source code, graphic, software, its documentation, name, mark, picture, text, meta-tag or other item which is protected or is eligible for protection under applicable intellectual property laws or copyright laws that belong to Cellense or to which rights belong to Cellense;

Monthly Invoicing Option” means base monthly payment for the Services agreed in the Service Agreement;

Services” means products and services described in Section 3 below herein and more specifically in the Service Agreement in “Description of Services”;

Service Agreement” means individual contract concluded between us and the Company that refers to these Term of Use;

Privacy Policy” means privacy policy of Cellense published and updated from time to time at: https://cellense.com/privacy-policy/;  

Parties” or “Party” means parties or party of the Service Agreement being us and the respective Company;

Overage Charge” means agreed percentage of the Monthly Invoicing Option;

Start Date” means date agreed in the Service Agreement as of which the Services will commence to be provided to the Company;

User” or “Users” mean end-users of the Company’s services (typically game players);

Websites” means www.buffpanel.com and www.cellense.com.

1.2 All terms defined in these Terms of Use may be used in the Service Agreement without the need to define and explain such terms again therein with the same meaning as is given to such terms herein.

2 Terms of Use

2.1 The Company agrees to these Terms of Use by conclusion of the Service Agreement, by registering its account at our Websites or by use of the Services whether or not the Service Agreement is in place.

2.2 The Service Agreement, these Terms of Use and the DPA (if concluded) jointly form the entire agreement between the Parties.

2.3 These Terms of Use govern the use of the Services, respective rights and obligations of the Parties and other aspects specifically mentioned herein.

3 Services

3.1 Services may include conversion attribution, marketing evaluation, campaign performance, product improvement or marketing campaign advisory or supportive services sometimes referred to as and distinguished as “Cellense” and “BuffPanel” services.

3.2 Services may require account registration of the Company at our Websites which is regarded as part of the Services.

3.3 The exact specification of the Services is agreed in the Service Agreement in section “Description of Services”.

3.4 Services always cover only explicitly agreed number of games or products of the Company.

3.5 Services are not intended for Users, Cellense does not have a contractual relationship with Users.

3.6 We are undertaking any reasonable efforts to maintain our Services accessible to you at all times. Nonetheless, you acknowledge and agree that our Services may not be accessible at all times without us breaching these Terms of Use.

3.7 Services are provided on “as is” basis. To the fullest extent permitted by the applicable law, except as expressly provided for in these Term of Use or the Services Agreement, we make no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use and non-infringement.

4 Duration & termination

4.1 The Service Agreement is valid as of its signature by both Parties and effective as of the Start Date. Parties may conclude number of Service Agreements.

4.2 Duration of the Service Agreement can be agreed:

4.2.1 for unspecified term with option of the Company to terminate by giving one-month prior notice (in Slovak: výpoveď) (the “Unspecified Term”); or

4.2.2 for fixed term of 6 months or longer without option of the Company to prematurely terminate by notice (the “Fixed Term”).

4.3 The Fixed Term renews automatically and repeatedly unless one of the Parties provides the other with written notice of its intention not to renew at least 30 days prior to the next renewal.

4.4 Both the Unspecified Term and the Fixed Term commence as of the Start Date.

4.5 In case of any termination of the Service Agreement, the Parties will not return any already provided performance of the Service Agreement / Terms of Use including already paid Fee(s). Termination of the Service Agreement is without prejudice to the obligation of the Company to pay the Fee for already provided Services prior to the termination on a pro-rata basis.

4.6 By termination of all Service Agreements, the DPA (if concluded between the Parties) is automatically terminated, unless Parties agree otherwise.

4.7 Cellense may terminate the Service Agreement immediately, if the Company breaches these Terms of Use or if Cellense reasonably believes the Company breaches these Terms of Use.

5 Fee & billing

5.1 If the Company opted for Fixed Term, it has an option to pre-pay the Fix-Term in one lump sum with a 15% discount from the Monthly Invoicing Option (not the Overage Charge) (the “Discount”). The Company must elect the Discount in the Service Agreement. If the Fixed Term renews automatically, the Company shall pre-pay the renewed Fixed Term with the same Discount as well. Parties can agree on higher discount in the Service Agreement if the Company elects to pre-pay the Fixed Term for a period of 6 months or longer.

5.2 Monthly Invoicing Option is always estimated based on the data points volume supported. Lower data points volume usage does not affect the Fee, which remains the same even if the data points volume is not reached. If the data points volume is exceeded, the Overage Charge will be added to the Monthly Invoicing Option for each opened/started “overage volume”. Overage volume as well as the Overage Charge are agreed upon in the Service Agreement and are determined by Cellense.

5.3 In case Parties agreed on the Discount, the Overage Charge will be calculated from the discounted Monthly Invoicing Option and will be invoiced separately on monthly basis adequately in accordance with provisions regarding the Fee below.

5.4 The Fee includes any and all costs of Cellense related to the provision of the Services. For avoidance of doubts, the Fee does not include costs of online campaigns, advertisement, creating or administering any account with other service providers which are borne solely by the Company. Any out-of-scope services not specifically agreed upon in the Service Agreement are subject to an individual fee arrangement to be reached between the Parties while these Terms of Use apply adequately to such out-of-scope services as well, unless agreed otherwise by the Parties.

5.5 Unless the Company opted for the Fixed Term with Discount or these Terms of Use provide otherwise, the Fee is payable monthly.

5.6 Monthly billing for Services shall commence on the Start Date, while Cellense shall issue an invoice corresponding to the Fee at the beginning of each calendar month (up-front) and Company shall make payment in respect thereof within 30 days of receipt.

5.7 If the Company fails to pay the Fee, without limiting Cellense’s other remedies, the Company shall pay an interest on the overdue amount at the rate of 5% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Company shall pay the interest together with the overdue amount.

5.8 The Fee and any amounts are without applicable VAT (value added tax) which shall be added to such amounts pursuant to the local and international VAT legislations.

5.9 If the Company opted for the Fixed Term with Discount (i.e. to pre-pay the Services in one lump sum), such payment is non-refundable. The Company may choose not to use the Services for the full agreed term, but the pre-paid amount will not be refunded to the Company. By accepting these Terms of Use, the Company acknowledges and agrees with such non-refundable payment.

6 Confidentiality

6.1 The Company shall maintain the Confidential Information strictly confidential and shall not disclose the Confidential Information to any third party without Cellense’s prior written consent.

6.2 The Company may disclose the Confidential Information to its personnel provided such disclosure is necessary and provided such personnel is bound by the same confidentiality obligations as stems to the Company hereof.

6.3 The Company may disclose the Confidential Information to public authorities if such provision is mandated by a statutory requirement provided that Cellense is notified about such disclosure upfront and given opportunity to object.

6.4 Cellense will undertake the same level of confidentiality over any data provided by the Company by virtue of using the Services as stems from this section.

7 Intellectual Property

7.1 We hold and reserve all intellectual property or copyright rights vested in the Services and Intellectual Property related to such Services.

7.2 By entering into the Service Agreement, we grant you a non-exclusive, revocable, non-sublicensable and non-transferable license to use the Services and Intellectual Property contained therein.

7.3 You shall not (without our prior written approval): copy, display, modify, adapt, translate, download, reproduce, create derivative works from any (part of) Intellectual Property and/or Services; reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any (part of) software; rent, lease, assign or otherwise transfer rights to (part of) Intellectual Property and/or Services; remove any proprietary notices or labels being part of any of Intellectual Property or Services; display our Intellectual Property in such a way that a reasonable person would make a negative, false or misleading idea about us or our Services; or use, post, transmit or introduce any device, software or routine which may interfere with any of Intellectual Property and/or operations of Services.

7.4 Cellense warrants to the Company, that by using the Services in accordance with these Terms of Use, the Company will not infringe third party intellectual property rights.

7.5 The Company is obliged to immediately report to Cellense any suspicion or knowledge about any conduct by Cellense or third party that relates to the Services, Cellense, Websites or social media of Cellense that breaches the above provisions related to the intellectual property and copyright.

7.6 Our Websites and/or Services may provide links to other sites; however, inclusion of these links does not imply any endorsement of such linked site or any association with their operation. We are not responsible for the contents of the linked sites or your use thereof. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

8 Final provisions

8.1 These Terms of Use as well as the Service Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the Slovak laws. This is without prejudice to the governing law in the DPA.

8.2 Parties agree that Slovak courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

8.3 If any of the terms of these Terms of Use turns out to be null, invalid, void or unenforceable, other provisions shall remain valid and enforceable. The relevant provisions shall be removed and/or amended by the parties in order to best reflect intentions when entering into hereof.

8.4 Any communication or notice between the Parties will be primarily made electronically, using the contact emails the Service Agreement or these Terms of Use (including for delivery of any termination notice or invoice). Each Party shall notify the other of any change in the contact details without undue delay. Until such change in contact details is notified to the other Party, the other Party may use the original contact details for any communication hereof which is deemed delivered to the breaching Party even if returned as not delivered. We may deliver you any communication or notice also by post or via your account at our Websites.

8.5 The way Cellense is processing personal data is explained in more detail in the Privacy Policy and the DPA if concluded between the Parties. Privacy Policy is not part of the agreement between the Parties and may be changed unilaterally by Cellense.  

8.6 The Company remains fully liable for its own campaigns, advertisement, creating or administering any account with other service providers and for compliance with any applicable laws, irrespective of whether the Services are related to it or not.

8.7 The Company is obliged to immediately report to Cellense any suspicion or knowledge about any conduct by Cellense or third party that relates to the Services, Cellense, Websites or social media of Cellense that breaches the law, these Terms of Use or the Service Agreement.

8.8 Some Services provided by Cellense require data provided by unaffiliated third parties. Customer understands that Cellense shall have no liability in the event that such third parties cease providing Cellense with data as necessary to provide Services hereunder. In the event that, for the foregoing reasons, Cellense is unable to provide the Services agreed upon in this Agreement, either Cellense and Company will have the right to terminate this contract with 30 days prior written notice. In the event that either Parties should decide to exercise this right, Company will remain liable for paying the Fee for the Services that Cellense has delivered to-date, pro-rated. In the event that the Company has pre-paid, the Company will be refunded the pro-rated amount and the Section 5.9 above does not apply.

8.9 The Company may not assign its rights and obligations stemming herein, in whole or in part, without the express written consent of Cellense.

8.10 Each Party remains liable for any damage caused to the other Party by breaching of these Terms of Use, unless otherwise provided herein. We shall not be liable for any indirect, special, incidental, exemplary, punitive or consequential damages or lost profits, data or other intangible assets, to the extent permitted by applicable laws. In all cases our total liability for any damage and loss caused in connection with these Terms of Use shall not exceed the amount of the Fee for our Services by you for the month in which the damage or loss have arisen.

8.11 The Company agrees that the Company’s logo, business name, games and their graphical representation may be used by Cellense as a credential on the Website free of charge.  

8.12 Any Party may at any time, set off any due liability or receivable against the other Party’s due liability or receivable whether or such liability or receivable arises under this agreement. If the liabilities or receivable to be set off are expressed in different currencies, the initiating Party may convert either liability or receivable at a market rate of exchange for the purpose of set-off.

8.13 Cellense may change these Terms of Use at any time for any reason by publishing a new version of these Terms of Use on Websites. If the change is substantial, Cellense shall notify such change to the Company by email. New version of the Terms of Use is effective as of the “effective date” mentioned therein or as of the publication if such date is missing.

 

Cellense, s.r.o.

Effective Date: 2018-09-25