Product Fruits Terms of Service

Please read these Terms of Service, the Privacy Policy available at productfruits.com/policies/privacy, and all other documents referred to herein (collectively, the "Terms") carefully before you start using the Service. When you start using the Service, sign a Service Order or click to agree to these Terms of Service when this option is made available to you, you conclude an agreement on use of the Service with Product Fruits (the "Agreement") which includes the Terms. If you do not agree to the Terms, you must not access or use the Service.

1. Definitions

1. 1.1. "Product Fruits" refers to Product Fruits s.r.o., a company incorporated under the laws of the Czech Republic, with registered office at Rozdělovská 1999/7, Břevnov, 169 00 Prague, the Czech Republic, ID 09552618, registered under file no. C 338063 registered at Municipal Court in Prague.
2. 1.2. Pronouns "you" and "Customer" refer to you as Product Fruits customer. If you are using the Service on behalf of a company, then you, as an individual, represent that you have authority to bind that company to the Agreement and "Customer" refers to that company. Customers fall into one or more of the following categories:
3. 1. "Trial Customers" use the Service during a 14-day trial period provided by Product Fruits. During the trial period, the Customer may decide to terminate the Agreement without having to pay the fees. If the Customer wants to continue to use the Service upon expiry of the trial period, the Customer has to purchase a subscription.
   2. "Paying Customers" use the Service based on a subscription purchased by the Customer and permitting that Customer to create and configure Service so that team members who work on and test Product Fruits content on their application ("Team Members") may join the workspace.
   3. "Team Members" access the Service as part of the plan purchased by the Paying Customer. Team Members do not pay for the Service, but they may be required to consent to the Terms when creating their user account or first logging in the Service. Nevertheless, only sections 3 (Use Restrictions), 4 (Account Terms), 8 (Copyright and Content Ownership), 9 (Representations and warranties), 10 (Limitation of Liability) and 11 (General Provisions) apply to access to the Service by Team Members.
4. 1.3. "Affiliate" of a person is any person that controls, is controlled by, or is under common control with, such person. The term "control" ("controlled by") means the power to direct or cause direction of management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
5. 1.4. "Chargeback" means contacting bank or credit / debit card provider and rejecting, cancelling, or contesting the charge of any amount payable in connection with use of the Service.
6. 1.5. "Customer Data" are data, instructions, materials, and other content that is provided by the Customer, or that Product Fruits receives by or through the Service. Customer Data does not include Resultant Data.
7. 1.6. "Effective Date" is the date when the Service Order commences as agreed in the Service Order. Unless otherwise agreed, the Effective Date is the date when the Service Order is submitted by the Customer.
8. 1.7. "Resultant Data" are statistical and performance data related to Customer's use of the Service.
9. 1.8. "Service" means the content and services provided through https://my.productfruits.com and other services in support of the above as set out in the Service Order.
10. 1.9. "Service Order" is any service order referencing these Terms of Service. Service Order may be executed in writing and signed by the parties, but it may also be submitted by the Customer and accepted by Product Fruits in electronic form via the Website.
11. 1.10. "Subscription" is any of the paid subscription plans offered by Product Fruits as described on the Website.
12. 1.11. "Term" is the term of the Agreement agreed in the Service Order and any additional term upon renewal ("Renewal Term").
13. 1.12. "Third-Party Materials" are materials, data, products, services, or software that were not created by Product Fruits, including open-source software. Third-Party Materials include integrations with analytical platforms, CRM, chats and similar services.
14. 1.13. "Website" is the website https://productfruits.com.

2. Service

1. 2.1. Subject and conditioned on Customer's compliance with the Agreement, Product Fruits hereby grants the Customer a non-exclusive, non-transferable, revocable right to use the Service during the term of the Agreement, subject to the limitations and restrictions set forth herein.
2. 2.2. Product Fruits may suspend, terminate, or otherwise deny Customer's access to or use of the Service, if:
3. 1. Product Fruits receives a judicial or governmental request or order that requires Product Fruits to do so, or if Product Fruits becomes aware that such an authority has enacted a new, or modified an existing, law, regulation, interpretation or decision that would make Product Fruits performance of the Agreement unlawful or otherwise illegal, or
   2. the Customer has failed to comply with the Agreement or used the Service beyond the scope of rights granted or for a purpose not authorized under the Agreement; or that the Customer is or has been involved in fraudulent or unlawful activities, or
   3. the Customer does not pay the fees when due, or Product Fruits receives a Chargeback.

3. Use restrictions

1. 3.1. The Customer may not, and may not permit any other person to, access or use the Service except as expressly permitted by the Agreement and, in case of Third-Party Materials, the applicable third-party license terms. The Customer shall not in particular, but not exclusively:
2. 1. make the Service available to a third-party other than Customer's Affiliate,
   2. rent, sublicense, re-sell, assign, distribute, time share, or similarly exploit the Service,
   3. reverse engineer, copy, modify, adapt, or hack the Service,
   4. access the Service, the Documentation, or Product Fruits confidential Information to build a competitive product or service; or
   5. bypass or breach any security used by the Service or access or use the Service other than through the use of Customer's own then valid access credentials,
   6. upload, transmit, or otherwise provide to or through the Service, any information or materials that is unsolicited advertisement or content (i.e., "spam"), unlawful or contains or activates any harmful code (software, hardware, or other technology, including malware, the purpose or effect of which is to permit unauthorized access to, disrupt or otherwise harm any computer, software, hardware, or network; or prevent any other user from accessing or using the Service),
   7. damage, disable, interfere with, or otherwise harm the Service, or Product Fruits' provision of Service, or
   8. access or use the Service in manner or for purpose that infringes any intellectual property right or other right of any third party or that violates any applicable law.

4. Account Terms

1. 4.1. The Customer is responsible for maintaining the security of its account and password. Product Fruits cannot and will not be liable for any loss or damage from the failure of the Customer to comply with this security obligation.
2. 4.2. The Customer is responsible for all content posted and activity that occurs under its account (even when content is posted by others who have their own logins under the account of the Customer). Product Fruits does not moderate or otherwise interferes with the content of the Customer unless specifically instructed so.
3. 4.3. The Customer may not use the Service for any illegal purpose or to violate any laws in its jurisdiction (including but not limited to copyright laws).
4. 4.4. The Customer must provide its legal full name, a valid email address, and any other information requested in truthful manner in order to complete the signup process.
5. 4.5. Customer's login may only be used by one person - a single login shared by multiple people is not permitted. The Customer may create separate logins for as many people as the Customer would like.
6. 4.6. The Customer must be a human. Accounts registered by “bots” or other automated methods are not permitted.

5. API Terms

1. 5.1. Customers may access their Service data via the Application Program Interface ("API"). Any use of the API, including use of the API through a third-party product that accesses the Service, is bound by the terms of this Agreement plus the following specific terms:
2. 1. the Customer expressly understand and agree that Product Fruits shall not be liable for any damages or losses resulting from the Customer's use of the API or third-party products that access data via the API.
   2. Abuse or excessively frequent requests to the Service via the API may result in the temporary or permanent suspension of the Customer's account's access to the API. Product Fruits, in its sole discretion, will determine abuse or excessive usage of the API. Product Fruits will make a reasonable attempt via email to warn the account owner prior to suspension.

6. Payment, Refunds, Upgrading and Downgrading Subscription plan

1. 6.1. Subscriptions are based on the number of Monthly Active Users (MAU). The MAU is a number of unique individuals for whom the Service is initialized on the Customer's application within a given calendar month. Each user is identified by a unique ID, ensuring that multiple logins by the same individual do not increase the MAU count. Additional details on how MAU is determined can be found at https://help.productfruits.com/en/article/identifying-users. Subscription plans also offer distinctive features described in the price list. Customer acknowledges that downgrading its plan may cause the loss of features or capacity of its account, Product Fruits shall not be liable for any loss of features, functionality or capacity resulting from Customer's downgrade of its plan.
2. 6.2. The MAU level chosen by the Customer is an estimate. Product Fruits shall have the right to monitor and calculate the number of MAU on an ongoing basis, and Customer agrees to promptly pay for any excess usage above their chosen MAU level in accordance with this Agreement. If number of the MAU exceeds Customer's current Subscription plan size, Product Fruits reserves the right to charge the Customer as follows:
3. 1. In case of yearly Subscription, Product Fruits reserves the right to charge the Customer for the Subscription plan size that corresponds to the number of MAU on a pro rata basis for the remaining months in the Customer then-current Term, commencing the month following the month in which the limits were exceeded.
      
      For example: Product Fruits offers MAU levels of “up to 1,500” and “up to 3,000”. If the Customer has a yearly Subscription for 1,500 MAU starting in January and exceeds the limit in March by reaching 1,900 MAU, Product Fruits will calculate the fee difference between 1,500 MAU and 3,000 MAU for the remaining Term and charge the Customer the pro-rated difference for the remaining 9 months of the yearly Subscription (from April till December).
   2. In case of monthly Subscription, Product Fruits reserves the right to charge the Subscription plan size that corresponds to the number of MAU from the following Renewal Term.
      
      For example: Product Fruits offers MAU levels of “up to 1,500” and “up to 3,000”. If the Customer has a monthly Subscription for 1,000 MAU and exceeds the limit in January by reaching 1,900 MAU, Product Fruits will charge the Customer for the corresponding Subscription plan size for 3,000 MAU starting from February.
      
      The obligation to pay the fees corresponding to such MAU level is not tied to Customer's actual use of all available MAU. Unless expressly set forth herein, the fees are non-cancelable and non-refundable.
4. 6.3. Unless the parties agree on specific pricing in the Service Order, the Customer shall pay the fees in accordance with the currently effective price list available on the Website. Product Fruits may change the price, institute new fees, or increase the fees for Renewal Term by providing written notice to the Customer. Any such changes will take effect at the start of the next billing cycle or Renewal Term, whichever comes first.
5. 6.4. The Customer shall make all payments via Stripe payment gateway. Customer hereby agrees to the terms and conditions of Stripe services available at https://stripe.com. Payment instructions will be displayed immediately after the Service Order is submitted. Product Fruits will issue and send the invoice to the Customer after the order confirmation. In case of Renewal Term and payment for exceeding MAU, the fees will be charged automatically to the payment method Customer last selected.
6. 6.5. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. Where required by applicable law, Product Fruits will collect those taxes on behalf of taxing authority and remit those taxes to taxing authorities.
7. 6.6. Product Fruits reserves the right to immediately suspend access to the Service, without prior notice, in the event Product Fruits receives notice of Chargeback. Chargeback will be considered a breach of Customer's payment obligations. Product Fruits may take reasonable steps to restrict Customer's future access to our Service if Product Fruits believes that Customer has maliciously requested Chargeback.

7. Cancellation and Termination

1. 7.1. The Customer is solely responsible for properly canceling its account. An email or phone request to cancel the account is not considered cancellation. Customer can cancel the account directly from the administration. Such cancellation does not effect the Subscription and the obligation to pay the fees that remain in effect until expiration of the current Term in accordance with the Agreement
2. 7.2. Initial Term commences on the Effective Date. Unless otherwise agreed, the Term will automatically renew for additional successive Renewal Terms of the same length as the previous one unless earlier terminated pursuant to the Agreement's express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the pending Term or Renewal Term in case of yearly subscription or on the last day of the then-current term in case of monthly Subscription. Each renewal term is subject to payment of relevant fees.
3. 7.3. In addition to any other express termination right set forth in the Agreement:
4. 1. either party may terminate the Agreement effective on written notice to the other one, if the other one materially breaches the Agreement and such breach is incapable of cure, or remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach, and
   2. Product Fruits may terminate the Agreement, effective on written notice, if the Customer: (i) fails to pay any amount when due hereunder, (ii) breaches any obligations or restrictions under Sections 3 or 4, (iii) files, or has filed against the Customer, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors; or applies for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
5. 7.4. Upon termination of the Agreement, except as expressly otherwise provided herein:
6. 1. Customer shall immediately cease all use of the Service,
   2. All Customer content will become inaccessible; Product Fruits may within 30 days destroy and permanently erase all Customer Data and Confidential Information, provided that, for clarity, this obligation does not apply to any Resultant Data. This information cannot be recovered once it has been permanently deleted.
   3. if the Customer terminates the Agreement pursuant to Section 7.3 (a), it will be relieved of obligation to pay the fees attributable to the period after the effective date of such termination, in all other cases all fees that would have become payable had the Agreement remained in effect until expiration of the current Term will become immediately due and payable, and the Customer shall pay such fees, together with all previously accrued but not yet paid fees. If Product Fruits is unable to charge them automatically to the payment method the Customer last selected, the Customer will pay the amount on receipt of Product Fruits invoice therefore.
7. 7.5. The rights and obligation of the parties in the Agreement that, by nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement.

8. Copyright and Content Ownership

1. 8.1. All data provided by the Customer shall remain the sole and exclusive property of the Customer. Nothing in this Agreement shall be construed as transferring, by implication or otherwise, any ownership rights in Customer data to Product Fruits. Product Fruits is granted only a limited, non-exclusive license to process and use Customer data as necessary to perform its obligations under this Agreement and only for purposes explicitly agreed upon by the Customer.
2. 8.2. The Customer is responsible for all content posted and activity that occurs under its account (even when content is posted by others who have their own logins under the account of the Customer). Product Fruits does not moderate or otherwise interferes with the content of the Customer unless specifically instructed so. All content posted on the Service must comply with copyright law of the Czech Republic, namely with the Act No. 121/2000 Coll., the Copyright Act.
3. 8.3. Nothing in the Agreement grants the Customer any license or other right to any intellectual property rights in or relating to the Service, or Third-Party Materials, even in case of customer requested changes. All rights to the Service and the Third-Party Materials are and will remain with Product Fruits and the respective rights holders. Customer does not acquire any rights except as expressly set forth in Section 3.1 or in the applicable third-party license terms. By entering into the Agreement or, as the case may be, by creation of such data, the Customer assigns to Product Fruits all rights relating to statistical and performance data related to Customer's use of the Service. Product Fruits reservess the right to refuse or remove any content that violates applicable provisions of law or any third-party rights and that is available via the Service.
4. 8.4. By agreeing to these Terms of Service, the Customer grants Product Fruits a worldwide, royalty-free, non-exclusive permission to use Customer's name, trade names, trademarks, and logos (collectively, "Customer's Marks") in marketing materials of Product Fruits, which permission shall survive the termination of this Agreement. This includes Website content, promotional materials, and presentations, specifically for the purpose of identifying you as a user of the Service and for promoting Product Fruits' products and services. Product Fruits may use Customer's Marks in ways such as listing the Customer as a customer and featuring Customer's Marks in Product Fruits' case studies. Product Fruits commits to use Customer's Marks in a manner that is respectful and neither misleading nor detrimental to your brand and reputation.

9. Personal data processing

1. 9.1. The Parties acknowledge and agree that any processing of personal data by Product Fruits on behalf of the Customer shall be governed by the Data Processing Agreement attached as Annex 1 to this Agreement. In the event of any conflict between the DPA and this Agreement, the DPA provisions shall prevail with respect to the processing of personal data.
2. 9.2. Except as otherwise provided in this Agreement or the DPA, all Customer Data remains the property of the Customer. Product Fruits shall process Customer Data only as set out in the DPA, in accordance with the Customer's lawful instructions, and for no other purpose.
3. 9.3. Product Fruits undertakes to implement and maintain appropriate technical and organizational security measures to protect Customer Data against accidental, unauthorized, or unlawful access, disclosure, or alteration, as further specified in the DPA and Annex 1.

10. Representations and warranties

1. 10.1. The Customer represents and warrants to Product Fruits that the Customer owns the necessary rights and consents relating to the Customer Data so that, as received by Product Fruits and processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
2. 10.2. The Service is provided "as is." To the maximum extent permitted under the applicable law, Product Fruits specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, Product Fruits makes no warranty of any kind that the Service, or any products or results of the use thereof, will meet your or any other person's requirements, be available or operate without interruption, achieve any intended result, be compatible or work with any software, system, or other service, or be secure, accurate, complete, or error free. All Third-Party Materials are provided "as is" and any representation or warranty of or concerning any Third-Party Materials is strictly between you and the third-party owner or distributor of the Third-Party Materials. Service does not replace the need to maintain regular data backups or redundant data archives. Product Fruits have no obligation or liability for damage, corruption, or recovery of Customer Data.

11. Limitation of Liability

1. 11.1. To the maximum extent permitted under the applicable law, in no event will Product Fruits or any of its affiliates, licensors, service providers, or suppliers be liable under or in connection with the Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) loss of production, use, business, revenue, or profit or diminution in value; (b) impairment, inability to use or loss, interruption, or delay of the Services; (c) loss, damage, corruption, or recovery of data; (d) cost of replacement goods or services; (e) loss of goodwill or reputation; (f) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, regardless of whether the Customer was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
2. 11.2. To the maximum extent permitted under the applicable law, in no event will the collective aggregate liability of either party and its affiliates, licensors, service providers, and suppliers arising out of or related to the Agreement, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory, exceed 100% the total amounts paid to Product Fruits under the Agreement in the 12 month period preceding the event giving rise to the claim. The foregoing limitations apply even if any remedy fails of its essential purpose.
3. 11.3. The Customer shall indemnify, defend, and hold Product Fruits, its officers, directors, employees, and Affiliates harmless from and against any and all third-party claims, demands, suits, or proceedings (“Claims”), and all related liabilities, damages, settlements, penalties, fines, costs, or expenses (including reasonable attorneys' fees and other litigation expenses) arising out of or related to (i) Customer's breach of this Agreement, (ii) Customer's violation of any applicable law or regulation in connection with its use of the Service, or (iii) any infringement or misappropriation of any intellectual property right or other right of a third party by the Customer data.

12. General Conditions

1. 12.1. In no event will Product Fruits be liable for any failure or delay in performance of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Product Fruits reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, cyber-attack (including DDoS), invasion, embargoes, strikes, passage of law, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Product Fruits may terminate the Agreement if a force majeure event continues for a period of 30 days or more.
2. 12.2. The failure of Product Fruits to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between the Customer and Product Fruits and govern the Customer's use of the Service, superseding any prior agreements between the Customer and Product Fruits (including, but not limited to, any prior versions of the Terms of Service). In the event of a conflict between the documents constituting the Agreement, the documents shall apply in the following order: (i) Service Order, (ii) Terms of Service, (iii) remaining documents in order of their appearance in the Terms.
3. 12.3. By agreeing to these Terms of Service, the Customer grants Product Fruits a worldwide, royalty-free, non-exclusive permission to use Customer's name, trade names, trademarks, and logos (collectively, "Customer's Marks") in marketing materials of Product Fruits, which permission shall survive the termination of this Agreement. This includes Website content, promotional materials, and presentations, specifically for the purpose of identifying you as a user of the Service and for promoting Product Fruits' products and services. Product Fruits may use Customer's Marks in ways such as listing the Customer as a customer and featuring Customer's Marks in Product Fruits' case studies. Product Fruits commits to use Customer's Marks in a manner that is respectful and neither misleading nor detrimental to your brand and reputation.
4. 12.4. Questions about the Terms of Service should be sent to support@productfruits.com.
5. 12.5. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Czech Republic, without giving effect to any principles of conflicts of law. Any legal suit, action, or proceeding arising out of or related to the Agreement will be instituted exclusively in the courts of the Czech Republic, and each of us irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
6. 12.6. Product Fruits may amend the Terms at its sole discretion. Product Fruits will notify the changes by email or through the Platform. All changes shall take effect on the date specified, which shall be at least 14 days from the date of notification of the changes and shall apply to all subsequent use of the Service. If the Customer does not agree to the changes, the Customer may terminate the Agreement effective upon the expiration its currently pending Term, which notice must be delivered to the Product Fruits prior to the effective date of the change. In the event of notice under this paragraph, the Terms currently in force shall apply during the notice period. Customer's continued use of the Service after the effective date shall mean that the Customer accepts and agrees to the changes.