1. Background

(A) Profil Klett is a developer and holder of intellectual property rights of the following software applications (i) IZZI Authoring Tool, a web application for creating interactive digital content; (ii) IZZI distribution application system consisting of online web-view application and offline desktop (Windows, MacOS and Linus) and mobile (Android, iOS) applications that allow the Client and their end-users to view, download and consume content created by IZZI Authoring tool; (iii) End-User Management Module (EUMM), a web application for creating and managing end-users that access and consume content through online and offline IZZI distribution applications; (iv) End-User License Management Module (EULMM), a web application for creating and managing end-users access codes for unlocking the digital content created by IZZI Authoring tool; provided that such content is distributed through IZZI distribution applications; and (v) pertaining infrastructure as defined in Annex II (all applications and infrastructure under points (i), (ii), (iii), (iv) and (v), collectively called “IZZI Product Suite”);

(B) Profil Klett wishes to offer IZZI Product Suite to its B2B customers (Clients) as a part of its cloud service offerings along with other services offered for regular use of the IZZI Product Suite, such as (i) use of IZZI knowledge base – a collection of articles and tutorials on the best practices of use of IZZI Product Suite, available online at https://izzi.zendesk.com/; (ii) hosting services; (iii) Help Desk services consisting of the support available to IZZI Authoring tool users via phone, chat or message and email to answer questions, provide support and assistance, report and resolve technical issues that require attention; (iv) maintenance and support of the Software Applications and/or Software included into the scope of Services purchased by the Client, including all updates and upgrades; and (v) training and educational services.

2. Definitions

1.2.1. The following terms shall have the following meaning when used herein:
Account: means any accounts or instances created by or on behalf of Client within the Services.

Agreement: means the Subscription Agreement together with any and all Annexes, other terms and conditions that might be, from time to time, released by Profil Klett and Order Forms.

API: means the application programming interfaces developed and enabled by Profil Klett that permit Client to access certain functionalities provided by the Services,

Assets: means all files, audio, video and pictures content uploaded to IZZI Authoring Tool by the Client and Client’s Personnel for the purpose of creating Publication(s)

Confidential Information: means all information disclosed by Client to Profil Klett and vice versa which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Profil Klett’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Data Protection Legislation: means REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) as well as any relevant data protection legislation in force from time to time and are applicable to the provision of Services pursuant to this Agreement and any equivalent legislation outside the European Union.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services, as applicable, provided or made available by Profil Klett in the Annexes to this Agreement or at its web site address [https://authoring.izzi.hr, https://demo-authoring.izzi.hr/, https://izzi.zendesk.com/, https://izzi.digital.]. Term “Documentation” excludes any publicly moderated forums that might be provided on Profil Klett web or accessible through knowledge base(s).

End-User: means any person or entity other than Client and Client’s Personnel that consumes Publication(s), i.e., digital content created by the Client’s Personnel as a result of the Services.

Other Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which Client subscribes, including, without limitation, development of additional functionalities, creation and development of digital content and the like.

Other Service Order Form: means any of Profil Klett Order Forms (different from Service Subscription Order Form) executed or approved by Client, specifying the other services that may be provided by Profil Klett and which are not included into Service Plan but will be used in conjunction with the Services, such as additional functionality development, content development and the like. Template of the Other Services Order Form is attached to this Agreement in the form of Annex 2 (Other Services Order Form).

Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.

Personnel: means employees and/or non-employee service providers and contractors of Profil Klett in connection with performance hereunder.

Price List: means price list of the Services List(s) offered by Profil Klett depending on the Client’s domicile. For the avoidance of doubt, price lists will be available either in the form of the attachment of the Subscription Order Form or on the Sites of Profil Klett.

Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Publication: means digital content created by Client and Client’s Personnel using IZZI Authoring Tool functionalities distributed to the End Users for their use.

Service(s): means the use of IZZI Product Suite and other products and services that are ordered by Client via Subscription Service Order Form referencing this Agreement, whether on a trial or paid basis, and made available by Profil Klett, via the applicable Client login link and other web pages designated by Profil Klett, including, individually and collectively, the applicable Software Application(s), their updates, API, Documentation, and all applicable Associated Services that Client has purchased (“Associated Services”). “Services” and “Associated Services” are described in Annex 3 of this Agreement (“Description of Services” and “Description of Associated Services”). From time to time the names and descriptions of the Services/Associated Services or any individual Service/Associated Service may be changed. To the extent Client is given access to such Service/Associated Service as so described by virtue of a prior Subscription Service Order Form or other prior acceptance of this Agreement, this Agreement shall apply to such Service as newly named or described. For the avoidance of doubt, all reference to the Services will include also Associated Services if and when included into the Client’s Service Plan determined in the relevant Order Form. In case that Services are not included into Subscription Plan, they will be considered Other Services that might be purchased under the relevant Other Services Order Form.

Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by the Client, Client’s Personnel and its End-Users in connection with Client, Client’s Personnel and/or End-Users’ use of such Service, which may include, without limitation, Personal Data. For the purpose of this Agreement, Service Data means also every material that Client, Client’s Personnel and its End-Users may produce, create or otherwise store within the Services and while using the Services. For avoidance of doubt Service Data includes without limitation Assets and Publications provided that only Assets and Publications will be delivered to the Client at the end of Subscription Term

Service Plan: means the packaged service plan(s) and the functionality and services associated therewith for the Services to which Client subscribe by virtue of relevant Service Subscription Order Form.
Site: means any and all websites operated by Profil Klett, including without limitation:
https://authoring.izzi.hr,
https://demo-authoring.izzi.hr/,
https://izzi.zendesk.com/,
https://izzi.digital.

Software: means software provided by Profil Klett (either by download or access through the internet) that allows Client, Client’s Personnel and its End-Users to use any functionality in connection with the applicable Service.

Client: means legal entity purchasing Services under a mutual Agreement

Client’s Personnel: means any person authorised by Client to consume the Services for the purpose of creating or reviewing digital content.

Subscription Service Order Form: means any of Profil Klett generated service order forms executed or approved by Client with respect to its subscription to a Service, which form may detail, among other things, the number of Client’s Personnel and number of End-Users authorised to use a Service, term of the subscription (one or more years of the subscription period) size of the server production space, the relevant Territory limitation for use of the Services, Service Plan, price list of the Services and other commercial and legal details applicable to Client’s subscription to a Service. Template of the Subscription Service Order Form is attached to this Agreement in the form of Annex 1 (Order Form/Subscription Plan).

Subscription Term: means the period during which Client has agreed to subscribe to a Service.

Usage Data: means aggregated encoded or anonymized data that Profil Klett may collect about a group or category of services, features or users while Client and its End-Users use a Service for certain purposes, including analytics, and which does not contain Personal Data.

3. General conditions; Access to and Use of the Services

2.1. During the Subscription Term and subject to compliance by Client and Client’s Personnel with this Subscription Agreement, Client has the limited right to access and use a Service consistent with the Service Plan(s) that Client subscribe to by virtue of relevant Client Service Order Form, together with all applicable Associated and Other Services (as the case may be), for business purposes of Client, i.e. for creating and/or distributing Publications to the End Users. Profil Klett will: (a) make the Services and Service Data available to Client pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to Client at no additional charge as detailed in Annex 2 of this Agreement (“Description of Services”); (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which Profil Klett will use commercially reasonable efforts to notify Client in advance both through its Site and a notice to Client’s Account owner) (“Planned Downtime”); (ii) helpdesk services which will be available from 9.00 to 16.00 CET during business days; and (iii) for any unavailability caused by circumstances beyond Profil Klett’s reasonable control, including, for example, governmental actions, flood, fire, earthquake, act of terror, strike or other labor problem (other than one involving Profil Klett’s employees), Internet service provider failure or delay, other services, or acts undertaken by third parties, including without limitation, denial of service attack.

2.2 A high speed Internet connection is required for proper transmission of the Services (at least 20/20Mbps). Client is responsible for procuring and maintaining the network connections that connect its network to the Services, including, but not limited to, browser software that supports protocols used by Profil Klett (Google Chrome, the most recent version not older than 6 months during the complete Subscription Term) and to follow procedures for accessing Services that support such protocols. Profil Klett will have an obligation to notify Client of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Profil Klett. Optimal use of IZZI Authoring Tool will require Client’s Personnel use of the laptops and other types of computer devices and not mobile and smartphone devices. Profil Klett assumes no responsibility for the reliability or performance of any connections as described in this Section.

2.3. In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, Client agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Client’s Personnel and dedicated End-Users as expressly permitted by this Agreement; (b) use the Services to process data on behalf of any third party other than Client and its End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Profil Klett or Klett Group, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software and/or Software Applications making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as determined in applicable Data Protection Legislation; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.

2.4. Client is responsible for its compliance with the provisions of this Agreement as well as by Client’s Personnel and End-Users and for any and all activities that occur under Client’s Account, as well as for all Service Data. Without limiting the foregoing, Client is solely responsible for ensuring that use of the Services to create, store, transmit and distribute Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Client may maintain or enter into with End-Users. Client also maintains all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for it and its End-Users purposes. Subject to any limitation on the number of Client’s Personnel and/or End-Users available under the applicable Service Plan(s) to which the Client subscribed or applicable Associated Service, access to and use of the Services is restricted to the specified number of Client’s Personnel and/or End-Users permitted under Client’s Subscription Plan. Client agrees and acknowledge that each Client’s Personnel and End-User will be identified by a unique username and password (“Login”) and that one Login may only be used by one (1) individual. Client will not share individual Login details among multiple individuals. Client, Client’s Personnel and End-Users are responsible for maintaining the confidentiality of all Login information for the Client’s Account. Unless otherwise agreed by the parties, Profil Klett will not directly communicate with the End-Users. Therefore, Client will be completely liable for actions of its End-Users as well as their proper notifications as set out in this Section.

2.5. Client shall ensure that all its End-Users accept a written commitment on use of the Services, Associated Services and Other Services which shall be, at least, as strict as the terms of this Subscription Agreement. Client shall be solely liable to Profil Klett for all actions undertaken by Client’s Personnel and the End-Users. Profil Klett shall have the right, from time to time, to review the Client’s terms and conditions applicable to its End-Users, and Client shall give Profil Klett full access to any information needed to carry out a review. Client shall amend its terms and conditions applicable to its End-Users in accordance with Profil Klett’s instructions in the event that Profil Klett, in its reasonable opinion finds that they are not compliant with this Subscription Agreement.

2.6. Profil Klett reserves the right, in its reasonable discretion, to temporarily suspend Client’s access to and use of a Service if it suspects or detects any Malicious Software connected to Client’s Account or use of a Service by or End-Users.

2.7. Client acknowledges that Profil Klett may modify the features and functionality of the Services during the Subscription Term. Profil Klett will invest its best efforts to notify Client on such modifications in advance.

2.8. If Client registers for a free trial for any of the Services, Profil Klett will make such Services available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by Client for such Service(s); or (c) termination of the trial by Profil Klett in its sole discretion. During the trial period, Client will be solely responsible for becoming familiar with the features and functions of the Services under applicable Service Plans before it makes its purchase.
Any Service Data Client and its End-Users enter into a Service, and any configurations or customizations made to a Service by or for Client, during its free trial will be permanently lost unless Client purchase a subscription to the same Service as covered by the trial, purchase the applicable Service, or export such Service Data, before the end of the trial period.

2.9. By virtue of the Other Services Order From specifying, among the other, business requirements of the Client, expected output results and deadlines for completion of the required work, chargers for such additional work of Profil Klett, Client may order from Profil Klett Other Services or Software from then available offerings of Profil Klett, including those delivered on a time/material basis. Profil Klett shall be bound by such Other Services Order Form from Annex 2 only upon its acceptance. All other details related to the provision of Other Services shall be specified in the relevant Other Services Order Form. For the avoidance of doubt, the Other Services may include, but not limited to, development of new functionalities, creation and modification of content placed by the Client and its End-User into the Services and the like.