Version: 1
Latest update: 25 august 2021

General

1. Team Space Europe SRL (company details at http://tspace.eu) (further abbreviated hereafter as “TSE”) is an international software development company that develops software products and distribute software products to entrepreneurs / professionals as defined in article 3 of the Romanian Civil Code (ie, Law no. 287/2009 on the New Civil Code, as amended and further restated – further abbreviated as “NCC”), as well as to legal persons under public law and special funds under public law.
2. TSE also offers to its Customers services enabling the temporary use of such software products over a telecommunications connection or the Internet as “Software as a Service” by way of access to a server (hereafter abbreviated as “SaaS”). One of these products is the software provided as SaaS – tSpace.EU (further referred to as “tSpace”).
3. For the avoidance of doubt, the Customer is not a consumer as defined in article 2 / para. (1) of the Directive 2011/83/EU, but a natural or legal person or a partnership having legal personality which, when entering into a legal transaction, acts in exercise of its trade, business or profession and is therefore an entrepreneur as defined in Article 3 NCC, a legal person under public law or a special fund under public law.
4. The Customer could only conclude an agreement with TSE, with the intention of using the tSpace software, via a telecommunications connection.
5. Solely subject to the terms and conditions comprised in these Terms of Use (hereafter abbreviated as “ToU”) and pursuant to provisions of Article 1175 of the NCC, as reported to the provisions of Article 1202 / para. (2) of the NCC, TSE offer its services with the purpose to entering binding agreements.
6. Acessing the eu platform could only be made upon Customer’s unconditional acceptance of the present ToU. A binding agreement (further, the “Agreement”) shall be deemed concluded pursuant to the Customer accepting these ToU for the term and in conditions set forth in Section 9, para. 1 and 2 below in this ToU.

1.     Scope of Agreement

1. The scope of Agreement is the supply of the SaaS tSpace software by TSE to the Customer, for use over the Internet, limited to these ToU, as well as the use of storage space on TSE servers for the application data generated during use of the Software. Details of services to be provided by TSE are laid out in the purchase order (hereafter the “PO”). The current statement of work published by TSE in in tSpace portal shall always apply. Customer can access this at tspace.eu
2. Together with the PO, these ToU shall represent the only applicable contractual terms and conditions. Any individual agreements made with the Customer in a particular case (including ancillary contracts, addendums and/or amendments) always take precedence over these ToU, in any event only if written and expressly acknowledged and accepted by the legal representatives of the contracting parties.
3. Any other terms and conditions stipulated by the Customer shall not apply, even if TSE does not expressly object in writing to their application. Any deviating or contradicting provisions therefore only apply if TSE has expressly acknowledged and accepted them in writing. This also applies if reference to the precedence and application of the Customer’s own general terms and conditions is made when a quote is submitted or accepted by the Customer.
4. References to the application of legal provisions are only made for clarification. The legal provisions therefore still apply even when such clarification is not provided unless they are directly amended or expressly excluded in these ToU and the related Agreement with the Customer.

2.     Services

1. TSE provides the Customer with the latest version of the Software over the Internet against payment of a plan fee and always under these ToU. For this purpose, TSE keeps the Software on a server which the Customer can access over the Internet. TSE gives the Customer defined storage space on the server for the purpose of saving the application data generated during the use of Software. Details of the services to be provided by TSE, particularly with regard to the range of the Software’s functions or its technical availability and when it is available, are laid out in the PO.
2. TSE fixes software bugs where possible in technical terms. A bug is deemed to exist when the Software does not perform the functions stipulated in the purchase order, produces incorrect results, or does not work properly in any other way, so that use of the Software is impossible or limited. Details regarding bug-fixing are laid out in the Customer’s PO.
3. TSE continuously develops the Software and improves it by way of regular updates and upgrades. Details regarding updates and upgrades are laid out in the statement of work in TSE website.
4. Details regarding the scope of the support services to be provided by TSE in response to queries from the Customer concerning use of the Software covered by the Agreement are laid out in the Customer’s PO.
5. TSE is permitted to use subcontractors to perform the services in accordance with the Agreement. The use of subcontractors does not release TSE from its contractual obligations towards the Customer.
6. TSE grants the Customer the option to export the data generated during use of the SaaS services with the Software. The Customer can use this data while using other TSE products, including on different infrastructure (eg, locally, on the Customer’s hosting). The relevant terms and conditions shall apply for the use of other TSE products.
7. The subject of the Agreement between TSE and the Customer is the latest version of the Software, as amended and developed by TSE.
8. Each account has an associated maximum limit that represents the storage space. In case of storing large files, it is possible to issue a recommendation from TSE to remove them. If many files (hundreds, or thousands) are frequently created / deleted, the account will be proposed for suspension if this type of activity does not cease, or the account will be suspended immediately if the activity violates the system’s performance. Files larger than 500 MB in size are not recommended to be stored.
9. TSE offer uplink up to 1Gbps but the allocated bandwidth is for a reasonable use of up to 5 TB per month, to exceed the traffic of 5TB / month it will be possible to purchase additional traffic packages at a cost of 60 euro / 100Mbps guaranteed or other packages available at tspace.eu. If the bandwidth is not upgraded and the consumption is constantly over 100Mbps, the server will be permanently limited to a maximum bandwidth of 50 Mbps.

3.     Right to use the Software

1. TSE grants the Customer an ordinary, non-exclusive and non-transferable right to use the Software specified in these ToU, throughout the term of the Agreement, in the form of SaaS services, using a supported web browser, for the Customer’s own internal business purposes as intended; sub-licenses cannot be granted. The precise scope of intended use, including the permitted number of users, is laid out in the Customer’s PO.
2. Unless otherwise expressly agreed or expressly permitted in accordance with mandatory legal provisions, the above granting of rights of use is subject to the following restrictions:
3. the Customer does not have the right to grant sub-licenses or to transfer the rights of use granted to it;
4. the Customer does not have the right to allow third parties to access or use the Software or the other components associated with it, either free of charge or for a fee; in particular, subletting it is not permitted;
5. the Customer does not have the right to edit the Software, particularly to modify it, decompile it, reverse engineer it or make other changes to it, unless this is expressly permitted in a separate express written agreement between TSE and the Customer;
6. the Customer does not have the right to copy the Software or the other components associated with it unless this is considered intended use of the Software in accordance with the latest TSE statement of work or it has been otherwise agreed in a separate express written agreement between TSE and the Customer. Necessary copying of the SaaS services includes loading the Software in the primary memory on TSE server, but not installing or saving the Software on the data storage media (including, without limitation hard drives, memory chips, ) of the hardware used by the Customer, even temporarily.
7. For the avoidance of any doubt, it is agreed and accepted that the Agreement does not include the assignment or transfer of any intellectual property rights to the Software supplied by TSE or the other components associated with it to the Customer.
8. Where applicable, TSE provides end user license agreements (hereafter referred to as the “EULA”) for third-party software components contained in the Software, to the Customer. The scope of the rights of use to be granted by third-party suppliers to the Customer for third-party software components is exclusively based on the relevant third-party supplier’s EULA.
9. If TSE makes changes to the Software during the term of the Agreement, particularly new versions, updates, upgrades or other modifications, the above provisions on the granting of rights of use shall always remain unaltered, save as otherwise agreed in a separate express written agreement between TSE and the Customer.

4.     Remuneration

1. The Customer must pay TSE the agreed monthly fee (VAT shall be added, pursuant to tax statutory requirements), unless otherwise expressly agreed in writing between TSE and the Customer, as a condition precedent for TSE to provide the Service in accordance with Section 2 and the granting of rights of use in accordance with Section 3 of these ToU. Unless otherwise agreed, the fee is based on TSE price list applicable on the conclusion date of the Agreement. The Customer can obtain details of the remuneration and of the free-of-charge test phase, pursuant to submitting the PO, as laid down in TSE website at https://www.tspace.eu/pricing.
2. TSE has the right to charge an extra fee based on its current price list (see TSE website reference in https://www.tspace.eu/pricing) for services that the Customer causes as a result of a breach of an obligation laid out in Section 5, that are necessary as a result of improper use or an incorrect software environment, or that are requested by the Customer.
3. The Customer must submit any of its objections in writing, related to the charge for services provided by TSE, to the body stated in eu portal, within ten (10) business days (nb, business days shall be deemed existing on each day when commercial banks are open for public in the city of Sibiu / Hermannstadt, Romania) upon receipt of TSE relevant invoice. Once this period has lapsed, the invoice is deemed to have been irrevocably accepted by the Customer.
4. For each day of delay of any due Customer payment, under and in connection with the Agreement and irrespective of fault, the Customer shall pay TSE a contractual penalty in amount of 0.5 % (zero point five percent) of any amount unpaid, computed to date when TSE bank account has been credited with the relevant complete amount (including the contractual penalty).

5.     Customer’s Obligations

1. The Customer is obliged to prevent unauthorized third-party access to the Software or to the other components associated with it, particularly to the secure parts of the Software. The Customer shall take appropriate security precautions to ensure that no unauthorized persons gain access to the Software via the Customer’s user account. For this purpose, the Customer shall advise its employees / agents on compliance with copyright law, where necessary.
2. To access and use the SaaS services, the Customer creates its own “user ID” and password, which are then required for subsequent use of the SaaS services. The Customer is obliged to keep its “user ID” and password secret and it must not disclose them to third parties.
3. The Customer always remains the sole owner of the data and, notwithstanding any obligations to back up data on TSE part, remains responsible for entering and updating the data and information required to use the SaaS services.
4. The Customer is obliged to scan its data and information for viruses or other malware before entering it and to use efficient and updated virus protection programs to do so.
5. The Customer is obliged to not use the Software in a way that damages or can damage the Software itself, the other components associated with it or the SaaS services, or that impairs or can impair the availability, accessibility, or functionality of the Software itself. In particular, the Customer is prohibited from using it for spam or for storing or spreading viruses or other malware.
6. The Customer is obliged to only use the Software in accordance with the applicable law, particularly in accordance with the applicable legislation, court rulings, official requirements or other orders, whilst respecting third-party rights and complying with the Agreement. In particular, the Customer shall take steps to ensure that it does not store, supply, disclose or use any content in a way that:

• • is punishable by a penalty or fine in accordance with statutory provisions;
  • infringes or could infringe third-party rights, particularly personality rights (including personal data), rights relating to names, copyrights, industrial property rights such as patents, utility models, trademarks or other rights relating to distinctive signs, rights arising from registered designs or legal rights protected by data protection law,
  • breaches moral standards, particularly that contains references to pornography, content that is harmful to young people or that glorifies violence, weapons, drugs, spread of diseases, and in general any other action / product that pose a risk to personal safety or propaganda for illegal organizations and parties; or
  • is associated with or promotes the purposes or activities stated in (a) to (c).

7. The Customer shall be obliged to keep TSE fully harmless and completely indemnified for any and all claims (financial or otherwise) that arise from or are in any way connected to Customer’s failure to comply with the obligations laid out in paragraph 6 above, irrespective of whether those claims are justified. Customer shall also bear any direct and / or ancillary cost related to any judicial order to suspend performance of the Services or of other TSE activity, the financial burden of any lease and other cost that TSE must uphold during such suspension, the cost of its stand-by workforce, as well as reasonable profit lost due to such suspension of activity. Customer shall also be liable for any judicial cost – including, without limitation, legal counsel fees, court taxes, stamp duty, – that the respective third parties would claim from TSE or that would otherwise be experienced by TSE.
8. The content filed and saved by the Customer when using the Software may be protected by copyright and data protection law. The Customer hereby grants TSE the right to make the content stored on the server accessible to the Customer, at its request, over the Internet for use of the SaaS services, particularly to copy and transmit this for this purpose and to copy it for the purpose of backing up data.

6.     Bug-fixing, Availability, Maintenance, Liability for Initial Defects

1. During the term of the Agreement, TSE shall fix bugs in the Software in accordance with the PO, where possible in technical terms. There is deemed to be a bug when the Software does not perform the functions stipulated in the PO, produces incorrect results, or does not work properly in any other way, so that use of the Software is impossible or limited. Details of categories of bugs and how bugs are handled, the availability of the Software and the SaaS services, disruptions to availability, maintenance periods and additional services such as support, where applicable, are laid out in the PO.
2. TSE shall notify the Customer of any maintenance work and perform it as quickly as possible subject to technical conditions.
3. The Customer must report bugs immediately, in writing or electronically. When reporting the bug, the Customer must place the bug in one of the fault categories stated in the PO. The Customer shall provide TSE with all the information about the reported bug that is required to identify and fix the bug.
4. The above provisions do not affect the provisions laid out in Section 7.
5. Except for in the cases of proven intent and gross negligence laid out in Section 7(3) and in the cases laid out in Section 7(6), strict liability for damages on the part of TSE (Article 1803 / para. (2) NCC) is excluded in relation to defects that existed when the Agreement was deemed concluded.

7.     Limitation of Liability

1. If unauthorized third parties use TSE services using the Customer’s login details, the Customer is liable for any resulting charges in line with civil liability up to the point of receipt of the Customer’s request to change its login details or notification of the loss or theft thereof, where the Customer is to blame for such unauthorized third-party access.
2. TSE has the right to immediately disable storage space if it has reasonable grounds to suspect that the stored data is illegal and/or infringes third-party rights. In particular, there are reasonable grounds for suspicion of illegality and/or an infringement of rights if courts, authorities and/or other third parties inform TSE of this. TSE shall inform the Customer of the ban and the reason for such suspension, with undue delay. The ban shall be lifted as soon as the suspicions are refuted.
3. Damage claims against TSE on any legal grounds are excluded unless TSE or its legal representatives or agents have acted with proven intent or gross negligence.
4. TSE only accepts liability for ordinary negligence if TSE or its legal representatives, executive employees or agents have breached one of its fundamental contractual obligations. In this case, TSE only accepts liability for foreseeable damage that could typically have been expected to occur. Fundamental contractual obligations are obligations that form the basis of the Agreement, that were crucial for the conclusion of the Agreement and that the Customer can expect to be fulfilled.
5. TSE shall not be held liable for the loss of data if the damage is due to the fact that the Customer has failed to back-up its data and therefore to diligently ensure that lost data can be restored with reasonable effort.
6. TSE could take liability for damages arising from loss of life, physical injury or damage to health caused by TSE or its legal representatives or agents through proven intent or gross negligence.

8.     Force Majeure

1. TSE shall not be held liable if it is unable to render its services due to Force Majeure, considered as external events beyond TSE reasonable control and command (eg, extreme natural phenomena, earthquakes, volcanic eruptions, ), including those extraordinary events implying human action (eg, riots, blockades, boycotts, civil war, insurrection, embargo, hostage taking, war, revolution, sabotage, strikes, terrorism, etc.) or manufacturing disruptions in an industrial sense. In the special case of pandemiTSE, a worsening of the conditions / restrictions existing on date of the conclusion of the Agreement shall be deemed force majeure only if it would entail an objective impossibility for the Party claiming the Force Majeure to execute its obligations.
2. In the case of TSE, Force Majeure also includes service disruptions on the part of its subcontractors if such subcontractor is prevented from rendering an essential service for the execution of TSE’s contractual obligations, due to a Force Majeure event (eg, a telecom / internet service provider is affected by a Force Majeure event).
3. The Party concerned shall immediately inform the other Party of the occurrence and end of the Force Majeure event and endeavor to the best of its ability to remedy the force majeure event and limit its effects as much as possible.
4. If a Force Majeure event means that a Party cannot fulfill an obligation from this Agreement (except for payment obligations) on time, this obligation is suspended for the duration of the Force Majeure event. Performance periods or deadlines are extended or postponed for the duration of the hindrance resulting from force majeure, plus a reasonable grace period. The Party affected by the force majeure event shall inform the other Party of the length of time for which this non-performance or delay is expected to last.
5. If the Customer cannot be reasonably expected to use or approve a service as a result of the delay, it can withdraw from the Agreement by immediately submitting written notice to TSE. The Customer must still pay for the services rendered by TSE up to this date.
6. If a Force Majeure event makes the provision of one of the Party’s services extremely difficult or even impossible and the hindrance is not merely temporary, the Party has the right to terminate the Agreement.
7. This does not affect either Party’s right to terminate the Agreement with good cause if a Force Majeure event lasts for a longer period of time. The grounds for termination laid out in Section 9 are not affected.
8. The provisions of this Section do not affect those of Section 7 above.

9.     Term and Termination of the Agreement

1. The contractual relationship begins when the Customer signs up and registers for use of the Software (contract conclusion).
2. Unless otherwise agreed with the Customer, the Agreement is concluded from the date of contract conclusion in accordance with paragraph 1 for a minimum term of 12 months. Subject to any agreement to the contrary with the Customer, the Agreement is then automatically extended for an extension period of 12 months unless it is terminated by the Customer up to one day before the end of the minimum term or the extension period. The Customer can obtain details of the contractual term from the PO and the following TSE website: tspace.eu
3. Both Parties’ rights to terminate the Agreement without notice with good cause are not affected. There is good cause when the Party terminating the Agreement cannot be reasonably expected to continue with the contractual relationship until the agreed expiry date or the end of a notice period, taking all of the circumstances of each particular case and both Parties’ interests into account. Termination without notice is always subject to the requirement that the other Party is warned and requested in writing to remedy the alleged grounds for the termination without notice within a reasonable period of time, considering the nature of expected remedy, in any case no earlier than ten (10) business days.
4. Any of the parties could justify a good cause if the other party becomes insolvent or ceases to trade.
5. In particular, TSE has good cause if the Customer ceases to make payments despite a reminder having been served and a grace period awarded, or if the Customer breaches the contractual provisions regarding use of the SaaS services.
6. When the contractual relationship terminates, TSE shall provide the Customer with all the data stored in the storage space allocated to it. The data is transmitted over a data network. The Customer is still able to use its data using other products provided by TSE in accordance with Section 2 para. (6) above, including on different infrastructure (eg, locally, on the Customer’s hosting). Customer is herewith advised that other products from TSE may not have all the features of the Software covered by this Agreement. The relevant terms of use applicable for the use of other products from TSE can be accessed via eu
7. TSE has neither a right of retention nor a statutory lessor’s lien in respect of the Customer’s data.

10.  Personal Data Protection

1. The Parties shall comply with the applicable legal data protection regulations when using the TSE SaaS services.
2. TSE is a Processor in the sense of Article 4 para. (7) of GDPR and, in this respect, shall not use data provided to it by the Customer (a Controller in the sense of Art. 8 (4) GDPR) for processing for any other purposes than to execute the Agreement. The Processor (TSE) shall comply with the statutory obligations set out in Articles 28 to 33 GDPR.
3. The Customer/Controller shall be responsible for all data, automated procedures and data processing equipment within their area of responsibility as well as for safeguarding the rights of data subjects. Also, the Customer/Controller shall be solely responsible for assessing the lawfulness of the processing of personal data by the Processor within the framework of this contractual relationship with regard to the provisions of the European General Data Protection Regulation (GDPR) and other Romanian laws and regulations concerning data protection.
4. The TSE/Processor may only rectify, erase or restrict the processing of data as processed pursuant to the Agreement if instructed to do so by the Controller. If a data subject contacts the TSE/Processor directly in this context, the TSE/Processor shall forward this request to the Customer/Controller it being understood that this could impair TSE from providing a part or all of its services hereunder.
5. After completion of the Agreement, the TSE/Processor shall anonymize all data, documents and processing or usage results created in his possession and to subcontractors in connection with the contractual relationship or have them deleted or destroyed in accordance with data protection regulations. The deletion or destruction shall be confirmed to the Customer/Controller, if required in writing to do so. Any statutory storage obligations or other obligations to store the data shall remain unaffected.
6. The TSE/Processor shall inform the Customer/Controller of any violation of the protection of personal data, disturbances, breaches of data protection regulations. To the extent possible, TSE/ Processor shall assist the Customer/Controller in complying with the obligations set out in Articles 30 to 36 GDPR concerning the security of personal data, notification obligations in the event of personal data breaches, data protection impact assessments and prior consultations.

11.  Transfer of Rights and Obligations

1. TSE has the right to assign or to transfer its rights and obligations driving from this Agreement to an affiliated company (as defined in Article 7, point 26, para. c) of Law no. 227/2015 on the Romanian Fiscal Code) or to a legal successor or acquirer of the majority or a of a significant part of TSE business.
2. The Customer cannot assign or transfer its contractual rights and / or obligations comprised in or deriving from this Agreement to another party, without prior written consent of.

12.  Right to Make Amendments

1. TSE reserves the right to amend or adapt the present ToU and / or the SaaS services it is contractually obliged to provide hereunder if:

• • these ToU must be adapted pursuant to a change in the applicable law, particularly in the event of changes in the legal situation or developments in case law or if TSE has to comply with a legal or official ruling;
  • technical or procedural changes with no significant effects for the Customer render an amendment necessary;
  • TSE offers new or additional services that have to be included in the Agreement and this does not entail any disadvantages for the existing contractual relationship with the Customer, or
  • the changes entail only legal benefits for the Customer.

2. The Customer is notified of amendments in writing by e-mail. If the Customer does not object to the change within four (4) weeks of receiving such notice, the amendments shall be deemed to have been accepted by the Customer and these ToU amended accordingly. The Customer is herewith specifically advised of its right to object and on the legal consequences of remaining silent.
3. The Customer’s rights regarding termination of the contractual relationship in accordance with Section 9 are not affected.

13.  Applicable Law, Place of Performance, Place of Jurisdiction

1. The Agreement shall be deemed concluded and executed in Romania, and thus governed by the substantive laws of Romania, excluding those provisions under Romanian private international law which might result in the application of a law other than Romanian substantive law. The Vienna UN -Treaty on Agreements for the International Sale of Goods shall not apply to the Agreement.
2. All disputes arising out of and/or in connection with the Agreement or its validity between the Parties shall be finally settled by the ordinary courts of law. The courts of Sibiu / Romania shall have exclusive jurisdiction. The Parties hereby irrevocably waive all objections against the jurisdiction of the Romanian courts and the aforementioned venue.
3. The exclusive place of jurisdiction for disputes arising from or in connection to this Agreement shall be Sibiu / Romania, in any case provided that TSE shall also be entitled to make claims in the jurisdiction where the Customer is registered (including but not limited to judicial claims, administrative procedures, legal title enforcement, ).
4. If Romanian law provides for any formal requirements regarding the validity and/or enforceability of the Agreement, in whole or in part, the parties shall, at the request of any party, take all actions and make all declarations necessary to comply with all of these formal requirements. The Parties herewith waive all rights, including termination rights in connection with a potential violation of any formal requirements according to Romanian law. This also applies to all amendments and supplements to the Agreement.

14.  Other Provisions

1. If a provision of the Agreement is or will be completely or partially invalid or unenforceable, the validity and enforceability of all other provisions in the Agreement shall remain unaffected. The Parties shall construe, and, if necessary, replace the invalid or unenforceable provision by a valid and enforceable provision which comes as close as possible to the economic purpose intended by the Parties with the invalid or unenforceable provision. This also applies to any gaps in this Contract.
2. Capitalized terms shall have the meaning defined in the Agreement.
3. For purposes of determining whether a Party has complied with any deadline under and in connection with this Contract, Central European Time (CET) shall be taken as reference.
4. Cross-references in the Agreement shall only refer to this ToU unless expressly provided to the contrary.
5. Any waiver of a Party’s rights, powers or remedies under this Contract must be in writing, dated and signed by an authorized representative of the Party granting such waiver, and must specify the right and the extent to which it is being waived.
6. The Agreement constitutes the entire agreement between the Parties and supersedes all any prior proposals and discussions relative to its subject matter, scope, and obligations of the Parties.
7. No verbal ancillary agreements have been made. Save for any provisions to the contrary in this ToU, any amendments, addendums and additions to the Agreement are only valid if the Parties have agreed them in writing.
8. Any notice and other communication under and in connection with the Agreement shall be made in writing, in the English language only, and be given in person, by mail, fax or by e-mail, using the contact coordinates listed in TSE webpage or in Customer’s registration in the tSpace