Business and Operating Terms of Provision of the Upgates Services
These terms and conditions are effective from 12.4.2023
The company EVici webdesign s.r.o., ID No.: 285 98 661, with registered office at Petra Bezruče 139, 747 91 Štítina (hereinafter referred to as "Upgates") is a company enabling the creation of e-shops (hereinafter referred to as "Project") through the use of Upgates services on domains, subdomains and languages owned by Upgates (hereinafter referred to as "Service").
By using the Service to create your Project, you agree to the following binding terms and conditions of the Upgates Service ("Terms of Service").
1. ACCOUNT TERMS AND CONDITIONS
1.1 Each person interested in creating a Project ("Customer") is required to create a user account on the Service ("User Account"). A User Account may be created by a legal entity or a natural person over 14 years of age. Entities based outside of the Czech Republic may only be legal entities with a valid and active personal identification number (hereinafter referred to as the "ID Number"). To create a User Account, it is necessary to fill in the information required by the registration form. By creating an account, the Customer enters into a contract with Upgates and declares that he/she agrees to these Terms of Service.
1.2 Each Customer shall protect the login credentials to their User Account and Project data storage so that they cannot be misused by any unauthorized person.
1.3 The Customer is responsible for all content that either he or other authorised persons enter into the User Account and for all activities carried out. All content and activities must comply with applicable law. In the event of a violation of the law or the Terms of Service, Upgates shall be entitled to deny the interested party access to the User Account and to delete it as well, without any compensation.
2.1 Backups of the database (i.e. mainly text and image content) are always performed once a day during nighttime hours. The five most recent daily backups and the three most recent weekly backups (always from Monday onwards) are always maintained. Restoration of a backup based on an individual Customer request can be done for a fee based on the scope of work and the hourly rate of the Service.
2.2 Backups of the graphics (i.e. mainly visuals and layout) of the Project are done automatically once a day during night hours. Restoration of the backup based on the Customer's individual request can be done for a fee according to the scope of work and hourly rate of the Service.
3. EXTRA SERVICES PROVIDED OVER AND ABOVE THE SERVICES - ADD-ONS, MARKETPLACE AND COMMISSION SYSTEM
3.1 In addition to the Services, Upgates also offers the possibility to arrange for extra services for the implementation of its Project. Excess Services means, in particular, modifications to the Project according to the price list on the Upgates website or extension services advertised on the Marketplace (hereinafter also referred to as "Excess Services").
3.2 The Service offers to link the Project to third party services (hereinafter referred to as "Add-ons"). A list of Add-ons is provided on the Upgates website under the Add-ons section at: https://www.upgates.com/addons. Upgates guarantees and provides technical support pursuant to clause 6.5 only to those Add-ons for which it is itself the provider. Upgates is only responsible for the Link offered and not for the operation of the Linked Service as such. The price of an Add-on does not include the cost or rental of the Linked Service.
3.3 The Customer acknowledges that in the case of an Add-on for which Upgates is not the provider, the relationship is defined according to the terms and conditions set by the third party (the provider of the Add-on); Upgates shall not be liable for any liability that may arise under or in connection with the Add-on.
3.4 In addition to the Add-ons, the Customer is provided with extension services necessary or useful for the operation of the e-shops (the "Marketplace") through the advertisements. The services in the Marketplace section at: https://marketplace.upgates.cz/ are provided by a third party on the basis of the terms agreed between the Customer and the third party (the provider of the extension service); Upgates shall not be liable for any liability that may be incurred on the basis of or in connection with the extension service from the Marketplace.
3.5 The price for Upgates' provision of the Upgates Extended Services is based on the number of hours required to perform each Extended Service, with the hourly rate and the number of hours expected to be spent on the performance of a particular Extended Service being communicated to the Customer in advance via a ticket in the Customer Support System.
3.6 When arranging for Outside Services that require upfront implementation costs, the Customer is advised to use the order form located on the page for that Outside Service in order to successfully define and implement the request.
3.7 The Customer must make any claim for an Add-on where Upgates is the provider within 48 hours. In the event of a claim for an Add-on provided by a third party or for Marketplace Services, the Customer shall follow the terms and conditions agreed with the third party.
Any claims for an Upgates service provided by a third party (operating the Add-on or Marketplace service) shall be governed by the sub-contractual terms and conditions agreed between the Customer and the provider of that Upgates service.
3.8 The Customer acknowledges that he/she can register and draw commissions for referrals of Services within the commission system at: https://www.upgates.com/a/affiliate-program-registration. In order to register for the system, you must enter your valid ID number.
In the event that an invalid ID number or other billing information is entered, no commission will be paid for referrals to the Services. If the correct billing information is not provided even within 12 months of Upgates' request, the Customer's entitlement to commissions will cease without refund.
4. PAYMENT TERMS
4.1 Unless otherwise agreed by the Customer, payment for the Services and Supplementary Services shall be made through the so-called wallet (the "Wallet"). The Customer shall deposit into the Wallet a minimum amount of 100 CZK or 5 EUR depending on the currency set and a maximum amount of three times the monthly recommended payment (unless the Customer is depositing funds to pay the annual subscription fee as per clause 4.6) as specified in the Project Wallet in the Finalization section. The amount can be deposited by bank transfer or paid by credit card. Once the paid amount has arrived in the Upgates account, an invoice will be sent to the Customer's email address.
4.2 Once a User Account is created, the Customer will begin a free thirty-day period of use of the Service to safely familiarize themselves with the features offered by the Service and to create a Project.
4.3 At the end of the free thirty-day period, the Customer has the choice of whether or not to continue using the Service. If so, the Customer must have a sum of money in the Wallet at least sufficient to cover the use of the Service for one day. In the event that the Customer does not have such a sum of money, the Customer's ability to use the Service will be restricted in accordance with clause 5 of the Terms of Service. When the ability to use the Service is restricted, only the Project Owner may log in to the administration, and only for the purpose of replenishing the required funds for proper use of the Service.
4.4 The free thirty-day usage period may also be reduced if the Customer charges the amount of money to his Project Wallet and sets up the Project domain before the expiry of this period.
4.5 Payments for use of the Service are charged once per day by deducting the relevant amount from the Wallet. In the event that the Customer does not have sufficient funds in the Wallet, the Customer will be notified by email.
4.6 The Customer has the option to pay for the Service as part of an annual subscription (the "Prepaid Plan") in the amount of eleven monthly rentals of the selected plan as per the price list at https://www.upgates.com/pricing. The Prepaid Tariff does not apply to Superior Services. In the event that the Customer uses Extra Services in addition to the Services, the Customer must have funds in his/her wallet for the daily operation of such services in excess of the Prepaid Tariff. Under the Prepaid Tariff, the Customer remains subject to paragraph 4.3 of the Terms of Service.
4.7 The Customer may upgrade to a higher tariff during the Subscription Plan, but in such case the Customer must contact the Sales Department via e-mail firstname.lastname@example.org and then pay the price difference. The Customer acknowledges that in the event of switching to a lower tariff, no refund of funds paid under the Prepaid Tariff can be claimed. The funds paid for the Prepaid Plan cannot be refunded even if the Customer terminates the Project early.
4.8 In the event of an increase in functionality (upgrade to a higher tariff) or a decrease in functionality (downgrade to a lower tariff) of the Service, the Customer must always order/cancel the functionality via their User Account. During the purchase of the upgrade, the Customer will be informed of the price for this upgrade. If the purchase of the upgrade is completed, the fee for using the new functionality is non-refundable. In the event of a downgrade, the Customer will not receive a refund to the Wallet, but will be used to continue operating the ordered Service. The Customer acknowledges that by downgrading, he/she may lose some functionalities that are linked to a higher tariff.
4.9 Upgates advises that if a downgrade is selected, the Customer may lose functionality, capacity or performance of the Customer's Project. Upgates is not responsible for such losses.
4.10 All prices quoted in the current Upgates price list are always exclusive of taxes, levies or duties imposed by tax authorities. The obligation to pay such taxes, levies or duties shall always be governed by applicable law.
5. CANCELLATION AND TERMINATION
5.1 If there is no funds in the Wallet for at least the daily rental of the Service, the administrative part of the Project will be suspended, i.e. the proper operation of the Project will not be possible. During this period, the Customer will be charged the appropriate amount for the daily operation for a period of 10 days.
5.2 If the Customer fails to pay the amount of money for the daily operation, including compliance with the condition under paragraph 4.3, second sentence, within 10 days from the expiry date of the Project, the web part of the Project will be suspended, i.e. its e-shop will not be visible to third parties. In such a case, the Customer shall also have the Project's e-mail box set up on the Upgates servers as part of the Service deleted, including the deletion of its complete contents, without the need for any backup and restoration in the future. After 10 days from the expiry date of the Project, the Customer will no longer be required to pay the daily service charge as per the previous paragraph.
5.3 In the event that the Customer fails to pay the amount of money as per the previous paragraph even after six months from the expiry of the Project, the Customer's User Account and the Project will be irrevocably deleted and the Project will not be able to be renewed.
5.4 If the Customer pays the amount referred to in clause 5.2 within six months of the expiry of the Project, the Project will be automatically renewed.
5.5 Upgates reserves the right, in its sole discretion, to suspend or terminate a User Account or Project and to refuse all current or future use of the Service if the content of such Project is against good morals, against racial tolerance, against sexual tolerance, against religious tolerance or religious beliefs, against political beliefs and against the relevant facts of the Criminal Code or if Upgates is requested to do so by the relevant government authorities. Such termination of the Project will result in the deactivation or deletion of the User Account and the Project, or access to the User Account, and the forfeiture and relinquishment of all User Account or Project content. Upgates reserves the right to refuse to provide the Service to anyone for any reason at any time.
5.6 Suspension of the Service shall occur when the Wallet of the Project in question expires, i.e. the amount of money reached is less than zero. Until then, the Customer's account is still active. If the Customer does not want the Project to be visible to third parties while the Wallet is not yet expired, the Customer can delete the domain set in the Wallet. At the same time, the Customer has a five-day period to download the contents of the Project for archiving, starting from the date of termination of the Service. Thereafter, all data will be irretrievably deleted. The Customer can only download the data using the official export files, which are in XML and CSV formats. No other database export is allowed by Upgates.
5.7 The Customer may terminate the Service at any time without giving any reason. In the event that the Customer has unused funds in the Wallet that he/she wishes to return, he/she is required to write as the owner of the Project via a ticket in the customer support system that he/she is terminating the Project and requesting a refund of the unused funds. The Contract is terminated at the moment of confirmation of the ticket in the customer support system, the cancellation of the Project will take place without undue delay.
6. SERVICE MODIFICATIONS AND PRICE CONDITIONS
6.1 Upgates shall not be liable for any accidental interruptions in the provision of the Service or linked third party services. Upgates further reserves the right to interrupt the provision of the Service for the time necessary to maintain servers and systems. Upgates represents that it will attempt to notify Customer of the possibility of interruption to the best of its ability, but also cautions against the possibility of accidental interruption without notice. During the period of demonstrable interruption of the Service, the Customer will not be charged for this Service if the disruption lasts longer than 24 hours.
Upgates agrees to continually modify the Service to provide better functionality and add new features, but also acknowledges the possibility of discontinuation of certain features, but which will not result in a material degradation of the Service or loss of functionality of the Service.
6.2 Prices for all Services, including Extra Services (other than Marketplace Services), are subject to change only after 10 days' notice of such changes. Notification may be made at any time and must be published on the Upgates website or in the Service itself.
6.3 The price of the Service, the scope of the Services and the Extra Services (excluding Marketplace Services) are set out in the Upgates price list at https://www.upgates.com/pricing#surcharge or its language versions, as applicable.
6.4 Upgates shall not be liable to the Customer or any third party for any suspension or interruption of the Service in cases such as server outages or software errors.
6.5 Upgates will provide the Customer with technical support for the operation of the Service via a ticket in the customer support system (maximum scope of 10 requests/month).
7. COPYRIGHT AND OWNERSHIP OF CONTENT
7.1 Upgates does not claim any intellectual property rights in the content that the Customer uploads to the Service. As the uploaded content is displayed publicly, the Customer gives consent for others to view and share it.
7.2 Upgates grants to the Customer, together with the Service offered, a non-exclusive, non-transferable license, which license is protected by generally binding regulations governing the protection of intellectual property rights. The licence is granted for the period during which Upgates will provide its services to the Customer.
8. CHANGE OF TERMS AND CONDITIONS
8.1 Upgates reserves the right to unilaterally change the wording of these Terms of Service at any reasonable time.
8.2 Changes to the Terms of Service and their publication will be notified to the Customer by email at least 1 month before the change takes effect.
8.3 In the event of a unilateral change to the Terms of Service, the Customer may terminate the Contract for this reason no later than the effective date of the unilateral change.
8.4 The latest version of the Terms of Service can be viewed at any time at https://www.upgates.com/terms-and-conditions-1.
9. DATA PROTECTION AND CONFIDENTIALITY
9.1 When placing an order, only the information necessary for the successful execution of the order (name, address and contact details) is required. The data provided will be used for the fulfilment of legal obligations and commitments set out in the contract and the Terms of Service, such as the processing of the order, or the handling of complaints, etc. Personal data is also processed via an electronic database for actions necessary and closely related to the performance of Upgates' obligations (hereinafter for this article also referred to as "Provider") and the execution of the contract, and also, where applicable, via third party data processors responsible for their actions.
9.2 The data is only available to Upgates, and is only disclosed to third parties with the exceptions set out in this article of the Terms of Service and furthermore except in situations related to distribution or payment, bookkeeping and the performance of other legal obligations of the provider. They will not be provided to any other person.
9.3 By providing the above personal data, the Customer consents to the use of such personal data by the Provider for the purpose of offering its products.
9.5 All information provided to each other is considered Confidential Information under the Terms of Service. In particular, information that the Customer has learned in connection with the use of the Service, as well as know-how, which means any knowledge of a commercial, manufacturing, technical or economic nature related to the activities of Upgates, which has actual or at least potential value and which is not generally available in the relevant business circles and is to be kept confidential, provided that the information in question is marked as confidential information or whose confidentiality results from applicable law.
9.6 Any user data, data or information contained in the Service or in the Superior Services, as the case may be, as well as pre-contractual communications are also expressly deemed to be Confidential Information.
9.7 The Customer and Upgates agree not to disclose, disclose, copy or allow to be copied, or use non-public and proprietary information (also referred to as "Confidential Information") to others for themselves or any other person. It undertakes to keep such information strictly confidential and to disclose it exclusively to those of its employees or subcontractors who are authorised to use the Service and are entitled to inspect such information to the extent necessary for that purpose. Both the Customer and Upgates undertake to ensure that such persons also treat the said information as confidential and keep it confidential. The Customer and Upgates shall inform each other if disclosure of Confidential Information would be required by law, authorities or courts.
9.8 In the event that the Customer intends to disclose Confidential Information, it is recommended not to disclose such information by email but to use a secure method agreed with Upgates.
9.9 The Customer shall dispose of any non-public or proprietary information that it has become aware of in the course of using the Service after performance under this Agreement has been terminated, whether by the execution or other termination of this Agreement.
9.10 The obligation to protect non-public and protected information shall continue notwithstanding the execution of the Agreement or termination of the Project. The obligation of confidentiality shall continue after the termination of the Project for a further period of 3 years.
9.11 If the Customer breaches the obligation of confidentiality under this clause, the Customer shall pay Upgates a contractual penalty of CZK 50,000 (fifty thousand Czech crowns), or the equivalent converted into EUR at the exchange rate of the Czech National Bank, for each instance found. The contractual penalty is payable at the time when the obligation is breached. Contractual penalties shall not be counted towards compensation for any damages incurred. Damages may be recovered separately from the full amount of the contractual penalty.
10. GENERAL PROVISIONS
10.1 Upgates shall be liable for damages caused by a culpable breach of its obligations to provide the Service or Add-on pursuant to clause 3.2, up to the amount of the price for the services provided per month. Upgates shall not be liable for defects or damages caused by defects in delivery or faulty output if caused by the Customer, a third party or circumstances excluding liability (for example, force majeure). However, Upgates ensures trouble-free operation 99% of the time per year.
10.2 Technical support is only available to paying User account holders and is only available via the form in the administration area of the Service.
10.3 Customer agrees not to reproduce, duplicate, copy, sell, or misuse any portion of the Service without the express written permission of Upgates. All code and know-how provided to the Customer by Upgates or the Service shall remain the property of Upgates, which means that it cannot be disposed of by the Customer as its own property and there shall be no transfer of ownership or similar rights.
10.4 Upgates shall have the right to publish a reference to Upgates, as the developer of the Service, in the footer and meta data of the Project source code for as long as the Project is in operation. The Customer may not remove this reference without the permission of Upgates. In case of removal of the link from the Project, a compensation amount of 350 CZK excluding VAT / month will be charged in addition to the monthly rental of this Project.
10.5 Upgates shall have the right to display links to completed Projects on its website on the Testimonials page and on social networks, which it has chosen at its sole discretion.
10.6 By paying the minimum fee for the use of the Service, the Customer obtains data storage in the ordered scope on the Upgates server and the possibility to use the ordered tools of the Service to create their own content and Projects. Payment of the minimum fee does not imply the acquisition of the Service as such, including source codes and know-how. The Service is at all times and under all circumstances the property of Upgates, unless Upgates decides otherwise.
10.7 Verbal, physical, written or other abuse (including threatened abuse or retaliation) of any Customer, employee, member, or responsible party of Customer will result in immediate termination of the User Account.
10.8 Upgates shall have the right to send email messages of an informational and promotional nature to the Customer from time to time.
10.9 The Customer acknowledges that the technical processing of Projects may be transmitted in an unencrypted manner and may be (a) transmitted over different networks; and (b) modified to adapt to the technical requirements of the networks or equipment used.
10.10 Customer shall not upload, post, host, or transmit unsolicited emails, SMS, or "spam" messages.
10.11 The use of computer worms or viruses or any code of a destructive nature is not permitted.
10.12 If the Customer's bandwidth usage significantly exceeds the average bandwidth usage of other Customers of the Service (the degree of overage is determined at Upgates' discretion), Upgates reserves the right to immediately deactivate the applicable User Account or certain Projects for the necessary period of time or to restrict hosting activity until the Customer provides a reduction in its bandwidth. In the event that the average bandwidth usage significantly exceeds the average bandwidth usage, Upgates does not guarantee the proper functioning of the Service, and in such event, Upgates recommends upgrading the Service to ensure Customer's requirements are met.
10.13 Upgates does not warrant that:
- The Service will meet the Customer's specific subjective requirements and ideas;
- The Customer has not set all the necessary parameters that require their interaction or the parameters are entered incorrectly by the Customer;
- The Service will be operated without any interruptions, safely or error-free;
- the results obtained from the use of the Service will be completely accurate and reliable;
- the quality of any products, services, information or other material purchased or obtained through the Service will meet the Customer's expectations.
10.14 The Service is provided to all Clients and the Service cannot be individually tailored to subjective wishes and requirements.
10.15 The Customer acknowledges that Upgates shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including any damages for loss of profits, goodwill, use, data or other intangible losses (even if Upgates has been advised of the possibility of such damages) arising out of:
10.15 Customer acknowledges that Upgates shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including any damages for loss of profits, goodwill, use, data or other intangible losses (even if Upgates has been advised of the possibility of such damages) arising out of:
- use of or inability to use the Service (or any part thereof);
- the cost of procurement of replacement goods and services arising from goods, data, information or services purchased or obtained or messages received or transactions entered into through the Service;
- unauthorised access to or interference with processes or data;
- third party statements or representations about the Service.
10.16 In the event of a loss under clause 10.13, Upgates is willing to compensate up to one monthly lump sum, which will be held in the Wallet.
10.17 The Terms of Service constitute the entire agreement between the Customer and Upgates and set out the manner in which the Service is to be used, superseding any previous agreements between the Customer and Upgates (including any previous versions of the Terms of Service).
Questions regarding the Terms of Service should be sent directly to Technical Support using the form from the e-shop administration under Support / Technical Support / New Inquiry.
Alternatively, send your questions to the business email email@example.com.