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These Terms and Conditions and any additional terms which may apply to certain products, services or entities, govern the use of and explain the terms on which Moonshapes – Design & New Media Lda., registered and incorporated in Portugal under the Company Number 509 312 802, whose registered office is at Urbanização Horta da Raminha, Lote 32 A, R/C, 8500-549 Portimão, Faro – Algarve (the “Company”) provides and gives access to its Services.
Please read these Terms and Conditions carefully before using or registering to use the Company’s Platform and Services. These Terms and Conditions create a legally binding contract between you and Moonshapes – Design & New Media Lda.
By clicking Agree and Continue you confirm your understanding and acceptance of these Terms and Conditions.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions shall have the following meanings:
1.1.1 “Account” means an account enabling a User to access and use the Platform;
1.1.2 “Affiliate” means any entity that directly or indirectly controls, or is controlled by, or is under common control with the subject entity. For the purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
1.1.3 “Agreement” means these Terms and Conditions, and any amendments to it, from time to time, if deemed necessary;
1.1.4 “Business Day” means any day other than a Saturday, Sunday or bank holiday;
1.1.5 “Company” means Moonshapes – Design & New Media Lda;
1.1.6 “Confidential Information” refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement (whether disclosed in writing, orally or otherwise) regardless of whether the Party expressly stated to be confidential or private. This includes, but not limited to, each Party’s data and each Party’s proprietary software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the use of the Services, personal data and all information clearly identified as confidential;
1.1.7 “Customer” means a natural or legal person (also defined as “Agency”) who has accepted this Agreement;
1.1.8 “Customer Data” means all digital data, works, information and materials: (i) uploaded to or stored on the Platform by the Customer (including the Users, products, persons, organizations, pipelines, deals associated with Customer); (ii) transmitted by the Platform at the instigation of the Customer; (iii) supplied by the Customer to the Company for uploading to, transmission by or storage on the Platform; (iv) or generated by the Platform as a result of the use of the Services;
1.1.9 “Data Protection Laws” means all applicable laws relating to the processing of Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
1.1.10 “Effective Date” means the date in which the first payment to access the Services is made by the Customer;
1.1.11 “Fees” means a regular payment for using the Account and Services;
1.1.12 “Intellectual Property” means any patents, patent rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks, and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof and created in the future;
1.1.13 “Platform” means the customer relationship management application designated by “Proppy” a registered trademark under Proppy – Friendly Real Estate registered and owned by the Company;
1.1.14 “Plan” means the various criteria related to the use and functionality of the Services and on which the Fee is based;
1.1.15 “Services” means any services that the Company provides to the Customer or has an obligation to provide to the Customer, under these Terms and Conditions and the Platform that forms part of this Agreement;
1.1.16 “Term” means as defined on clause 5.1. of this Agreement.
1.1.17 “User” means a natural person, over 18 years old, holder of an Account, who uses and has access to the Platform.
2. Provision of Services
2.1 Service: With effect from the Effective Date, Company shall, throughout the Term of this Agreement, provide the Services to Customer.
2.1.1 The Company reserves the right, in its sole and absolute discretion, to make changes from time to time and without notice in how the Service is operated. Any description of how the Service works should not be considered a representation or obligation with respect to how the Service will always work.
2.2 Registration: Certain features, functions, parts or elements of the Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
2.2.1 Choose the intended Plan, provide the necessary details and proceed with the first payment;
2.2.2 Once the first payment is completed and the Customer is able to access the Plan, registration is automatically accepted.
2.2.3 By proceeding with the initial payment, the Customer is accepting this Agreement.
2.3 Notwithstanding number 2.2.2. above, the Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
2.4 Customer responsibilities: Customer shall: (i) be responsible for its employees’, agents’ and contractors’ compliance with this Agreement, including all the specific restrictions applicable; (ii) be responsible for the insertion and creation of content (iii) use all commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Company promptly of any such unauthorized access or use; (iv) use the Service only in accordance with the terms and conditions of this Agreement and applicable laws and regulations.
2.4.1 Although Company has no obligation to monitor Customer’s use of the Service, Company may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.
2.4.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Customer shall also be responsible for maintaining the security of such equipment, accounts, passwords (including, but not limited to, administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge and consent.
2.5 Customer reference: Customer agrees that Company may identify Customer as a recipient of services in sales presentations, marketing materials and press releases.
2.6 Customer Data: If Customer uploads Customer Data to the Platform, such Customer Data and any processing of such Customer Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Customer Data belong to Customer or third persons whether posted and/or uploaded by you or made available on or through the Services by Company. By uploading Customer Data to the Platform, Customer authorizes Company to process Customer Data.
2.6.1 No Guarantee of Accuracy: Company does not guarantee any accuracy with respect to any information contained in any Customer Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Services. You understand that all information contained in Customer Data is the sole responsibility of the person from whom such Customer originated. This means that Customer, and not Company, is entirely responsible for all Customer Data that is uploaded, posted, transmitted, or otherwise made available through the Services, as well as for any actions taken by Company or other Customers or Users as a result of such Customer Data.
2.6.2 Company is not obliged to pre-screen, monitor or filter any Customer Data or acts of its processing by Customer in order to discover any unlawful nature therein. However, if such unlawful Customer Data or the action of its unlawful processing is discovered or brought to the attention of Company or if there is reason to believe that certain Customer Data is unlawful, Company has the right to: (i) notify Customer of such unlawful Customer Data; (ii) deny its publication on the website or its insertion to the Platform; (iii) demand Customer to bring the unlawful Customer Data into compliance with these Terms and applicable law; (iv) temporarily or permanently remove the unlawful Customer Data from the website or Account, restrict access to it or delete it.
2.7 Prices: Monthly prices of the product will depend on temporary promotions and the plan chosen\number of users, but are generally from 20€/month.
3.1 License: Subject to this Agreement, and the payment of the applicable service Fee, during its term, Company hereby grants Customer a limited, non-exclusive, non-transferable, non-sub-licensable license, without rights to sublicense, to use the Platform during the Service term, subject to the specifications and limitations set forth in this Agreement.
3.2 Usage Limits: The license granted by Company to Customer is subject to the following usage limits:
3.2.1 The Services must only be used by the named users specified by Customer contact, provided that Customer may change, add or remove a designated named user by duly notifying Company to do so;
3.3 Restrictions of Use: Unless otherwise authorized under this Agreement, Customer must not (and will not allow any third party to): (i) sell, rent, lease, license, sublicense, distribute, pledge, assign or otherwise transfer, in whole or in part the Services or any interest in them to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Services in whole or in part by any third party without Company’s prior written consent; (iii) install or use the Platform in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Service; (iv) modify, translate, adapt or create derivative works based on the Platform; (v) export or re-export the Platform or any derivative work thereof; (vi) use the Platform to develop, test, host, or run and operate applications on behalf of third-parties to this Agreement, without Company’s prior consent; (vii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Platform, or any software, documentation or data related to the Service; (viii) use the Service to provide third party training; (ix) attempt to copy, parse, crawl, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; (x) access all or any part of the Platform in order to build a product or service which competes with it; (xi) use the Service in any way that is contrary to the terms and conditions of this Agreement; or (xii) use the Service for any unlawful purposes.
3.4.1 The number of users that may access the Platform is subject to the type of Plan the Customer has chosen. If several persons need to use the Account on behalf of the Customer, the Customer must designate such persons as Users.
3.4.2 If Customer/ Agency has designated Users and granted them authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. Company is not responsible for and shall have no liability for verifying the validity of authorization of any User. However, Company may, in its discretion, request additional information or proof of the persons credential.
3.4.3 Each of those Users shall be subject to the restrictions set forth in these Terms.
4. Fees and Payment Terms
4.1 Fees: The use of an Account is subject to a fee. Upon sign-up for an Account, Customer must select a Plan. All Fees herein are payable to Company in advance. The orders are non-cancelable, and, upon payment, all payments are non-refundable.
4.2 Changing Plans: Any Customer has the right, at any time, to upgrade or downgrade their current Plan by selecting a new Plan amongst the collection of Plans determined by Company. In such an event, Customer’s credit card on file with Company will automatically be charged with a Fee for the next payment period with the rate stipulated by the new Plan. In an event of a downgrade, the Customer must proceed with the Payment of the current Plan until the end of the contractual period and shall not receive the difference in value of the Plan. Downgrading the current Plan may cause the loss of features of the Account, as well as the loss of Customer Data.
4.2.1 Payment of changing plans by the Customer shall be made via bank transfer, PayPal or ATM reference number to the Company, to be charged per user, or any other authorized credit card processor.
4.3 Additional Fees: If Customer’s use of the Service exceeds the Service capacity the payment of additional fees, Customer shall be billed for such use and Customer agrees to pay the additional fees in the manner provided herein.
4.4 Price Changes: Company reserves the right to change the Fees or applicable charges and to set new charges and Fees at the end of the initial Service Term or upon renewal. Company must notify Customer 30 (thirty) days prior to such change (which may be sent via email). Inquiries should be directed to Company’s customer support department.
4.5 Invoicing and Payment: Customer will provide Company with valid and updated payment method information or alternative document reasonably acceptable.
4.5.1 Company will propose to Customer the following payment methods via Easypay – Instituição de Pagamento Lda.: (i) Bank transfer; (ii) ATM reference number or (iii) Credit Card (Visa, Mastercard).
4.5.2 If Customer provides credit/debit card or direct debit account information to Company, Customer authorizes Company to charge such methods for all Fees for the initial subscription term and any renewal subscription term(s) as governed in “Renewal” section below. Such charges shall be made in advance, either annually or in accordance with any different billing chosen by Customer. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
4.5.3 Overdue Charges: If any invoiced amount is not received by Company by the due date, then without limiting the Company’s rights or remedies, (i) overdue payments are subject to a fine of 1.5% per month on any outstanding balance, or the maximum rate allowed under applicable law, whichever is the lowest.
4.5.4 Suspension of Service and Acceleration: Any charge owing by Customer under this or any other agreement for Services for which payment has been declined, if not paid within 7 (seven) calendar days’ after notice that its account is overdue (in accordance with “Notice” section below), Company may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, which shall ensure payment is cleared within the Transfer Period, before Company suspends Services to Customer.
4.5.5 Payment Disputes: Company will not exercise its rights under the “Overdue Charges” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.5.6 Currency and Taxes: All amounts and fees stated or referred to in this Agreement are payable in Euro. Invoiced fees are exclusive of sales taxes (VAT excluded), which shall be added to the Company’s invoice(s) at the current rate in force (except in the case of reverse charge on EU VAT or non-EU based Customers).
5. Term and Termination
5.1 Term: This Agreement commences on the Effective Date and continues in force for a period of 1 (one) year.
5.2 Renewal: Except as otherwise agreed by the Parties, Services shall automatically renew for additional periods equal to the expiring Service term, unless either Party gives the other notice of non-renewal at least 60 (sixty) days before the end of the relevant Service term.
5.3 Termination: Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of any warranty, term, condition or covenant of this Agreement and fails to cure that breach within 30 (thirty) days after written notice of such breach.
5.4 Termination for Breach by Customer: If Company terminates this Agreement as specified in this “Term and Termination” clause, Customer must pay immediately all amounts that have accrued prior to the termination of this Agreement, as well as all sums remaining unpaid under this Agreement.
5.5 Effect of Termination: During the 30 (thirty) days following termination and subject to the payment of all Fees owed under the Agreement, upon request, Company will make Customer’s Data available for export and download by Customer. All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranties, disclaimers, and limitations of liability.
6.1 Use and Disclosure: During this Agreement and for a period of 5 (five) years following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party. Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contracts or agents in violation of the terms of this Agreement.
6.2 Permitted Disclosures: Either Party may disclose Confidential Information of the other Party either (i) in response to a valid order by a court or other government or regulatory body, (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement, provided such Party promptly notifies the other Party of such request and allows it the opportunity to object or to seek a protective order.
6.3 Non-Confidential Information: The Parties shall not be obligated under this clause with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed by the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without access to the Confidential Information.
6.4 Destruction or Return: Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof.
7. Intellectual Property, Ownership and Title
7.1 Ownership and Title: Customer shall own all right, title and interest in and to the Customer Data. Company retains all right, title, and interest in and to (i) the Service and the Platform, all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other technology developed in connection to the Service, Platform or support; (iii) in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals and extensions of such rights. Customer is not granted any rights to any trademarks or service marks of Company. Nothing in this Agreement shall be interpreted to grant (by implication or otherwise) any license or rights to Customer except as expressly stated herein.
7.2 Usage Data: Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business.
8. Data Protection
8.1 All personal information Company may use will be collected, processed and accordingly treated according to the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and the Customer’s rights under the GDPR.
9. Warranty and Disclaimer
9.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall perform any implementation Service in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.
9.2 Exclusion of Liability in Case of Failure: Company shall not be held liable for any failure in the export of service to portals or for any losses arising from it, ensuring only to use reasonable industry standards to resolve any problems that may have arisen to Customer or their technical team regarding Company’s services. The automatic export service does not eliminate the need to regularly check the information on the exported properties, nor does it remove the need for direct communication between Customer and portal. Customer is responsible for periodically checking this data and provide information in case of any occurrence that may be detected.
10.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any European patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or is believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
11. Limitations and exclusions of liability
11.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY CHANGES IN THE BUSINESS MODEL OF THIRD PARTIES OR CUSTOMERS; (C) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (D) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (F) FOR ANY LOSS ARISING OUT OF OR RELATED TO THESE TERMS INCLUDING ANY LOSS OF PROFITS, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS UNDER OR IN RELATION TO ANY OTHER CONTRACT, REVENUES, OR GOODWILL INCURRED, HOWEVER SO CAUSED AND WHETHER OR NOT THE RELEVANT PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS.
12. Force Majeure
12.1 Non-performance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, internet service provider failures or delays, denial of service attacks or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.
13.1 Relationship of Parties: The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
13.2 Assignment: This Agreement is not assignable or transferable by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. Any attempt by either Party to assign or transfer this Agreement without such consent shall be void. Notwithstanding, Company can freely assign or transfer this Agreement to an affiliate company or as a result of a merger or sale of all or a substantial part of its share capital. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions, as well as the existing Order Forms shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
13.3 Severance: If for any reason a court of competent jurisdiction finds any provisions of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect, except to the extent such invalid provision related to essential aspects of the Agreement.
13.4 No waiver of Rights: The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require performance by the other Party of any of the provisions of this Agreement, shall not be construed to be a present or future waiver of such provisions, nor affect the validity of either Party’s right to enforce such provision in future.
13.5 Entire Agreement: This Agreement, including all Addendum, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
13.6 Notice: All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13.7 Governing Law and Jurisdiction: This Agreement shall be governed by the laws of the Portugal. Any claims arising out of or in connection with this Agreement shall be resolved in the courts of Lisbon.