TERMS OF USE

These Terms of Use are effective as of 27.09.2021.

Welcome to Trafft!

Trafft Platform is owned and operated by TOUCH ME SOFT d.o.o., with the registered seat on the address Milutina Milankovića 11B/3, Belgrade, the Republic of Serbia (hereinafter: TMS). By accessing, using or attempting to use Trafft, you enter into a legally binding contract with TMS and you agree to these Terms of Use, Privacy Policy, Cookie Policy, including any supplemental license terms that accompany Platform (as defined in Section 1), any documents and any linked terms in the Terms of Use.

Terms of Use in other Sections apply generally to Service and to all Clients and Customers (as defined in Section 1), with the exception of the provisions which are by their nature applicable solely to one of the two categories of subjects.

All the terms are important and together create this Agreement that applies to you. If you find anything in this text that you do not agree with, please stop using Trafft immediately.

In case you wish to find out how we process your personal data, please see our Privacy Policy and Cookie Policy.

1. DEFINITIONS
2. WHO CAN USE TRAFFT?
3. TRAFFT SERVICE
4. MODIFICATIONS OF TOU
5. ELECTRONIC COMMUNICATIONS
6. INTELLECTUAL PROPERTY
7. AUTHORIZATION TO USE
8. SUBSCRIPTION
9. FREE TRIAL PERIODS
10. PAYMENT
11. UPGRADING OR DOWNGRADING PLAN
12. ACCEPTABLE USE OF TRAFFT
13. CLIENT CONTENT, CLIENT DATA AND PERSONAL DATA PROTECTION
14. WARRANTIES DISCLAIMER
15. LIMITATION OF LIABILITY
16. INDEMNIFICATION
17. TERMINATION
18. SEVERABILITY
19. NOTICES
20. NO WAIVER
21. THIRD-PARTY SERVICES AND WEBSITES
22. GOVERNING LAW & COMPETENT COURT; DISPUTE RESOLUTION
23. NO CLASS ACTION
24. ENTIRE AGREEMENT

1. DEFINITIONS

In these Terms of Use, as well as in our Privacy Policy, the listed terms shall have the following meaning:

2. WHO CAN USE TRAFFT?

Service is solely intended for the subjects who have full legal capacity.

Natural persons

In case Client, i.e., Customer is a natural person, such natural person needs to be at the age of majority (legal age) to be able to use the Service. Legal age depends on the national legislation applicable to Client, i.e., Customer, but usually, a natural person needs to be 18 years old. Trafft is not intended to be used by minors and by using Service, Client, i.e., Customer represents that he/she is of legal age. In case Client, i.e., Customer is not at the required age, such person shall stop using Service and Trafft immediately.

Client has an obligation to ensure that any Employee or Customer who is a natural person, and whom Client has caused to become Customer (for example, by inviting the person to access Service) or Employee has full active legal capacity.

Service is primarily aimed at businesses and companies. However, if a Client who is a natural person is using Service for a purpose unrelated to trade, business, or profession, and wishes to rely on consumer protection legislation, Client is obliged to notify Trafft before the start of using Service and before subscribing to any Paid Plan. In the event Client who is a natural person fails to send such notification to TMS, such Client shall not be able to rely on any applicable consumer law and will not be able to invoke any consumer rights, particularly including the right to withdraw from Agreement.

In case any natural person accesses Service or Trafft or otherwise browses our Website, this Agreement is between such a natural person, individually, and TMS.

Enterprises (legal entities)

In case you enter into Agreement on behalf of Enterprise, you warrant that:

1. you have the full legal authority to bind Enterprise to TOU;
2. you have read and understood TOU entirely;
3. you have Enterprise’s permission and authority to use Enterprise’s Client Content;
4. you agree to TOU on behalf of the Enterprise you represent.

Please note that, if you subscribe to Service with an email address of a company you are a part of (for example, containing corporate email domain), you will be deemed to represent such company and the word “Client” or “you” in these TOU shall refer to that Enterprise. In such a case, Enterprise and the individual who subscribed on behalf of Enterprise are jointly responsible for the use of Service and Trafft.

If you subscribe to Service with a personal email address and there is no formal affiliation to any Enterprise, you shall be deemed a natural person instead of Enterprise.

General

TMS reserves the right to manage any Client Account, the risks it will assume, the industries it will serve, and the locations where it will do business, including choosing not to provide Service to certain groups, parties, industries, or companies in certain countries, in its sole discretion. The same applies (to the extent applicable) to any Customers’ account, regardless of whether Customer logs in as a guest or through the created account.

Unless you and TMS have agreed otherwise, in case you are Enterprise, during the Term of the Agreement, TMS may disclose your business name as a Client using Trafft, and you hereby grant TMS the right to display your name, company, and logo in TMS’s marketing materials and on any TMS’s public website, in each case in accordance with any branding guidelines you may provide to TMS.

3. TRAFFT SERVICE

General

Client, i.e., Customer shall be bound by this Agreement in any of the following situations, whichever occurs first:

1. Upon creating a Client Account, i.e., accessing Trafft as a Customer (regardless of whether logging in as a guest or through the Customer account). Creating a Client Account, i.e., accessing Trafft as a Customer entails an obligation to verify Client’s/Customer’s email address.
2. In case Client/Customer agrees to or is deemed to have agreed to Agreement. Any use, access or attempt to use or attempt to access Platform or Service shall be considered deemed to agree.
3. In case Client makes the payment for the Service in accordance with Agreement.

TMS will make Service available to Client/Customer pursuant to this Agreement and (where applicable) the plan chosen by Client. We will use commercially reasonable efforts to make Service available 24 hours a day, 7 days a week, except:

• during planned downtime (of which we will give advance notice); or
• for any unavailability caused by circumstances beyond our reasonable control, including, for example, a force majeure event; or
• as necessary to update Service to ensure its security and integrity and provide Service only in accordance with applicable law.

Downtime excludes performance issues with individual features, external network or equipment problems outside of our reasonable control, or issues that are related to external apps or third parties.

Client/Customer acknowledges that TMS may modify the features and functionality of Service during the Term of the Agreement. TMS shall provide commercially reasonable advance notice to Client/Customer of any deprecation of any material feature or functionality of Trafft.

In case Client/Customer is dissatisfied with the terms of this Agreement or any modifications to this Agreement or Service, Client/Customer agrees that the sole and exclusive remedy is to terminate this Agreement and discontinue the use of Service.

Booking via Trafft

General. In order to book Client’s service through Trafft, Customer needs to login to its account or book as a guest via Client Page. After the appointment is booked, both Client and Customer will receive a confirmation of the appointment to their designated email addresses and/or designated telephone number via SMS.

Rescheduling/cancellation of the booked appointments. Both Client and Customer may reschedule or cancel the appointment after the initial booking. The status and details on the appointment are visible and may be changed in “Appointments” (for Client), i.e., “My appointments” (for Customer) section within Client Account, i.e., Customer’s account on Client Page.

Disclaimer. TMS has no responsibility with regard to booking, rescheduling, or cancelling appointments. Additionally, TMS has no obligations in terms of any refund to Customer or Client for the cancelled appointments and is not liable for any damage which may occur in relation to the booking, rescheduling and/or cancellation.

Client-Customer Relationship

Provision of Client’s services. Upon creating a Client Account, the Client can provide its services via Trafft and use all the available features within the Client Account in accordance with these TOU. Appointments, prices, lists of Customers may be edited and amended by Client (in case of Enterprise, with respect to the disparate roles within Client such as Super Admin, Manager or Employee) at Client’s sole discretion and TMS has no obligations or responsibilities in this regard, with the exceptions with obligations and responsibilities arising from the other provisions of this Agreement and applicable law.

Coupons. Client may create Customer coupons which may include special offers and promotions to Customers. Client has sole discretion to create, modify, edit, remove or otherwise dispose of any coupons within Client Page as long as such activities do not violate any provision of the applicable law and TMS has no obligations or responsibilities in this regard, with the exceptions with obligations and responsibilities arising from the other provisions of this Agreement and applicable law.

4. MODIFICATIONS OF TOU

TMS may revise and update these Terms of Use or any part of Agreement at any time. Clients and Customers are cautioned to review TOU posted on Website periodically. Any changes shall enter into force upon being published on Website (including information delivered via Client Account i.e., Customer’s account used for accessing Trafft) and/or after at least 10 days upon the receipt of the notification from us via email. Clients’, i.e., Customers’ continued access or use of the Website after any such change will constitute the acceptance of these changes. In case Client, i.e., Customer, does not agree with the amended terms of Agreement, (with the exception of Subscribers), we would kindly ask such Client, i.e., Customer, to stop using Trafft immediately.

If you are a Subscriber, the existing Agreement shall continue to be valid until the expiration of the then-current billing term (for example, until the expiry of the month for which Subscriber has already made the payment to TMS), unless Parties agree otherwise (including the agreement which entails an implicit consent by Subscriber’s continued use).

5. ELECTRONIC COMMUNICATIONS

By accepting these TOU, Client, i.e., Customer agrees to be bound by this electronic contract. Additionally, visiting the Website or sending emails to TMS shall constitute electronic communications. Client, i.e., Customer hereby gives consent to receive electronic communications and Client, i.e., Customer agrees that all agreements, notices, disclosures, and other communications that are provided by Trafft electronically (via email or SMS), satisfy any legal requirement that such communications be in writing.

We would particularly draw the attention that the notifications about any amendment of TOU made in accordance with Section 4 (Modifications of TOU), as well as any material change to Service or Agreement shall be sent to the Client, i.e., Customer via email accordingly to Section 19 (Notices). TMS has a legal obligation to inform Clients and Customers about the change of TOU, in order for Client/Customer to decide whether to continue using Service. Such correspondence does not constitute marketing or promotional emails, and Client/Customer cannot unsubscribe from receiving such notifications. If Client/Customer does not wish to receive such notifications, Client/Customer needs to terminate Agreement and stop using Trafft.

6. INTELLECTUAL PROPERTY

Unless otherwise indicated in Agreement, Service, Trafft and entire Content (including but not limited to the original source code, Website, images, graphic elements, design, databases, logo or other signs, domain, trade name and business name, trademarks or service marks, any customized work and other related materials) are protected by Intellectual Property Rights of TMS.

Both Clients and Customers have only the rights specified under Section 7 (Authorization to use). Clients/Customers may not acquire any other Intellectual Property Rights under this Agreement. Trafft is made available on a limited-access basis, and no ownership right may be transferred to any Client or Customer, irrespective of the use of terms such as “purchase” or “sale” in TOU or anywhere within Platform or on Website.

Any unauthorized use of Content and/or any part of it, without the permission of TMS, shall be deemed an infringement of Intellectual Property Rights. Within the shortest term upon the acknowledgment of any unauthorized use, TMS shall take all legal remedies to protect its Intellectual Property Rights.

Any copying or downloading of Content in part or whole is permitted only upon the provision of explicit written consent of TMS.

Additionally, TMS reserves all Intellectual Property Rights not expressly granted in this Agreement.

7. AUTHORIZATION TO USE

If you are a Customer, TMS grants you a personal, limited, non-exclusive, non-transferable, revocable authorization to access and use Service for your personal purposes in accordance with Agreement and any other instructions on Website and/or within Trafft.

If you are a Client, in consideration of your acceptance of this Agreement and your payment of all applicable fees (if you have chosen one of our Paid Plans), TMS grants you a limited, non-exclusive, non-transferable (or restrictedly-transferable), revocable authorization to access and make use of Service solely for your internal business purposes, in accordance with Agreement and any other instructions on Website and/or within Trafft.

The authorization to access (for Clients) enables:

1. Super Admin: the right to use Service in accordance with Agreement and the chosen plan (Free Plan or one of Paid Plans) and to provide a limited set of its rights to Employee to whom Super Admin has enabled login to Dashboard;
2. Employee: the right to login to Client’s Dashboard and use Client Account in accordance with Agreement, the chosen plan (Free Plan or one of Paid Plans), and the scope of rights which Super Admin has granted to the Employee (particularly including access and use of Calendar and Appointments functionalities).

Nothing in this Agreement obliges TMS to deliver or make available any copies of computer programs or code to Client or Customer, whether in object code or source code form. Clients and Customers agree to use Service only in compliance with all applicable local, state, national, and international laws, rules and regulations.

Any other use of Trafft, Service or Client Account or Customer Account not specifically mentioned in this Agreement by any Client or Customer is forbidden.

For example, the authorization to use does not give Client/Customer any right to, and Client/Customer may not:

1. publish, copy, rent, lease, lend, sell, create derivative works, or transfer in any way Trafft, Website, Service, or any portion(s) of the foregoing;
2. distribute, transmit, publish, or otherwise disseminate Trafft, Website, Service, or any portion(s) of the foregoing;
3. attempt to access or derive the source code or architecture of Trafft, or work around any technical restrictions or limitations in Trafft;
4. reverse engineer, decompile, or disassemble Trafft, or attempt to do so;
5. use Trafft features in any way that could interfere with anyone else’s use of them, or to try to gain access to or use any service, data, account, or network, in an unauthorized manner;
6. attempt to probe, scan, or test the vulnerability of Website, Service, and/or Trafft, or any associated system or network, or to breach any security or authentication feature or measures, and, if Client/Customer is blocked by TMS from accessing Website, Platform, or Service (including by blocking Client’s/Customer’s IP address), Client/Customer will not implement any measures to circumvent such blocking (e.g., by masking Client’s/Customer’s IP address or using a proxy IP address).

8. SUBSCRIPTION

By creating a Client Account at Trafft Client automatically starts its Free Plan. In case Client wishes so, Client can switch from Free Plan to any Paid Plan at any time, in which case Section 11 (Upgrading or Downgrading Plan) applies. Once Client chooses to switch from Free Plan to any Paid Plan, the Client becomes a Subscriber, and the respective subscription fees in accordance with the chosen Paid Plan shall begin to apply.

Paid Plans are charged either monthly or annually, as chosen upon subscription.

Changes in prices. Prices set out on our Pricing page are subject to change at any time. Any price may change at any time and will become binding on Subscriber upon 7 days after the receipt of a written notice sent by TMS unless Subscriber unsubscribes by email within such a period or by the end of the then-current Subscription Term, whichever of the two dates is later. Such notice may be sent to Subscriber by email to Subscriber’s most recently provided email address or posted on Website or by any other manner chosen by TMS in its commercially reasonable discretion. Subscriber shall be deemed to have received any such notice posted on the Website on the day following the date it was posted.

9. FREE TRIAL PERIODS

TMS offers free trial periods for Paid Plans as explained on Website or otherwise. During the free trial, Clients are subject to TOU except as otherwise stated in such offers. TMS reserves the right, in its sole discretion, to determine the eligibility of the Client for a free trial. Clients who use free trial may at any time choose not to continue to Paid Plan by cancelling before the end of the free trial.

TMS may require the Client to insert a valid payment instrument, such as a credit card or other permitted method before using the free trial. In this case, we may validate that payment method, including by requesting a temporary authorization from the financial institution issuing Client’s payment instrument. In case TMS ascertains that Client’s payment instrument is invalid, without limiting any of our other rights, we may revoke any benefits Client may have received as part of the free trial.

Client will not be eligible to participate in any free trial if the Client has already been subscribed to any Paid Plan.

10. PAYMENT

General. Anyone who subscribed to Service or anyone who has permitted or caused another person to make a subscription on their behalf is deemed to have agreed to and accepted liability for the payments under such Paid Plan.

The payment of Service shall be made before the commencement of the Subscription Term.

Please note that in case the chosen Paid Plan includes a recurring payment of a fee, unless Subscriber notifies us before the payment has been made that Subscriber wishes to cancel/does not want to automatically renew the subscription, such subscription shall automatically continue and it shall be deemed that Subscriber has authorized us (without notice to Subscriber, unless required by the applicable law), to collect the then-applicable fees and taxes using any payment instrument of Subscriber’s we have previously collected.

Subscriber hereby authorizes TMS to charge to respective Client Account, relating to Service Subscriber selects, and Subscriber agrees to pay all such fees in accordance with TOU.

All sums payable to TMS hereunder shall be paid in full, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance, applicable tax, or other charges related to the payment. All fees for our Service are exclusive of any VAT or other taxes and public duties, save where TMS has explicitly stated to the contrary. Each Subscriber is responsible to bear all public duties related to the purchase of Service.

Billing data. Subscriber is obliged to keep all the billing data complete and accurate at all times (such as a change in billing address, credit card number, or credit card expiration date) and must promptly notify TMS in case of changes in the payment methods (in case of, for instance, loss or theft), as well as if Subscriber becomes aware of a potential security breach, such as the unauthorized disclosure or use of name or password. If Subscriber fails to provide any of the foregoing information, Subscriber agrees that TMS may continue charging for any use of service unless Subscriber has terminated Agreement in accordance with Agreement.

In case the Subscriber’s default payment instrument is declined for any reason, we may deny access to Paid Plan immediately.

No refunds. Fees paid for our Service are non-refundable. In case Agreement or Paid Plan is terminated or varied within a certain billing period, Subscriber shall not be entitled to any refund concerning that billing period. Any payments paid for the future billing periods will not be refunded unless Parties explicitly agree otherwise.

Subscriber understands that Subscriber shall not be entitled to any refund in case Subscriber stops with the use of Service. In case Subscriber does not use our Service, we would kindly ask to cancel the subscription to any Paid Plan and switch to Free Plan or terminate the use of Trafft completely.

Customer payments. Payments made by Customers for Client’s services ordered via Client Page are handled by a third-party payment gateway, such as Pay-Pal or Stripe, for instance. TMS does not have any responsibility nor receives any commission for the processing of Customer’s payments and shall not be liable for any matter in connection therewith. Additionally, TMS is not liable for the accuracy of the prices offered by Client to Customers and such prices may be changed at any time at the Client’s sole discretion.

11. UPGRADING OR DOWNGRADING PLAN

In case Client wishes to upgrade or downgrade the chosen plan before the expiry of the then-current Subscription Term (to the extent applicable), please contact us at help@trafft.com. Please note that termination prior to the expiration of the Subscription Term does not entitle you to any refund of the paid fees.

Upgrading plan

Any Client using Trafft may upgrade the chosen plan at any time. Upgrading the chosen plan shall mean:

• switching from Free Plan to a Paid Plan, and/or
• switching to any Paid Plan which is paid annually from any/same Paid Plan paid monthly, and/or
• switching to any Paid Plan higher than Paid Plan Client has previously been subscribed for.

Plans may be upgraded as follows:

1. 1. Free Plan to any Paid Plan

In case Client switches from Free Plan to any Paid Plan, Client will instantly be charged for the next billing period (a month or a year,
depending on the chosen Paid Plan). Upon the payment, the Client will obtain immediate access to all Custom Features of the chosen Paid Plan as well as the respective number of Employees available.

1. 1. Paid Plan to higher Paid Plan

If Client upgrades the chosen Paid Plan to a higher Paid Plan, the Client will instantly be charged for the next Subscription Term on a pro-
rata basis. Upon the payment, Client will obtain immediate access to all Custom Features of the higher Paid Plan and the respective number of Employees available. Client’s new Subscription Term shall commence from the first day following the day the payment has been made, and the next billing date shall be the first day after the expiration of Subscription Term.

1. 1. Monthly Paid Plan to the annually Paid Plan

If Client upgrades the chosen monthly Paid Plan to any/same Paid Plan which is paid annually, Client will instantly be charged for the next year on a pro-rata basis. Upon the payment, Client will obtain immediate access to all Custom Features of the higher Paid Plan and the respective number of Employees available. Client’s new Subscription Term shall commence from the first day following the day the payment has been made, and the next billing date shall be the first day after the expiration of Subscription Term, which shall, in this case, be one (1) year.

Downgrading plan

Any Client using Trafft may downgrade the chosen Paid Plan at any time. Downgrading the chosen Paid Plan shall mean:

• switching to Free Plan from any Paid Plan,
• switching to a plan that offers fewer Custom Features, as well as fewer Employees available, and/or
• switching to Paid Plan which is paid annually from any/same Paid Plan paid monthly.

Cancelling or downgrading Paid Plan can be done via Client Account. The current Paid Plan shall be cancelled/downgraded upon the expiration of the then-current Subscription Term.

Plans may be downgraded as follows:

1. 1. Any Paid Plan to Free Plan

If Client chooses to downgrade Paid Plan to Free Plan, Client’s access to Custom Features will be denied upon the expiration of the then-current Subscription Term, the number of Employees available shall decrease accordingly and Client can continue to use Free Plan.

1. 1. Paid Plan to lower Paid Plan

In case Client decides to downgrade Paid Plan to the lower Paid Plan, access to Custom Features available within the current Paid Plan will be denied upon the expiration of Client’s then-current Subscription Terms. The same applies to the Employees available within the higher Paid Plan. In the future, Client will be charged for a lower Paid Plan in accordance with Subscription Term applicable to the newly chosen Paid Plan.

1. 1. Annual Paid Plan to monthly Paid Plan

If Client downgrades the Paid Plan paid annually to any/same Paid Plan paid monthly, Client will continue to be charged for the monthly Subscription Term upon the expiration of Client’s annual Subscription Term. Access to Custom Features available within Client’s current Paid Plan will be denied upon the expiration of the then-current Subscription Terms. The same applies to the Employees available within the higher Paid Plan.

1. 1. Annual lower Paid Plan to monthly higher Paid Plan

In case Client downgrades the chosen Paid Plan paid annually to a higher Paid Plan paid monthly, Client will immediately get access to Custom Features within the higher Paid Plan and the respective number of Employees. The payment Client has previously made for the annual Paid Plan will be calculated on a pro-rata basis, and Client will be able to choose whether the remaining amount of the paid fee will be used to charge the outstanding payment for the monthly Paid Plan, or it shall be deposited as a credit on Trafft. Any remaining credit shall be applied against the amounts payable for the next Subscription Term.

Please note that there is no possibility to claim a refund of such credit.

12. ACCEPTABLE USE OF TRAFFT

Clients and Customers are obliged to comply with the following rules of acceptable use:

• Information provided by Client and Customer must be complete, accurate, and up-to-date. This pertains to all the information necessary for registration purposes, as well as to the contact information. It is strongly prohibited to use a false identity on Trafft.
• Client Account may be used solely by Client and Client is obliged to prevent any third parties from using Client Account individually or simultaneously with Client. The same applies to the Customer’s account used for accessing Trafft, regardless of whether logged in as a guest or through the created account.
• Client and Customer are obliged to undertake all necessary measures to maintain the security of Client Account and Customer’s account and credentials for logging in to Client Account and Customer’s account, which shall be shared solely with the authorized individuals. Client/Customer is responsible for any use of Website, Service and Trafft through Client Account, i.e., Customer’s account, regardless of whether such use is authorized or not. TMS shall not be held liable for any loss, damages, or expenses arising from Client’s/Customer’s failure to comply with this obligation. Client/Customer shall be solely liable for any losses, damages, liabilities and outlays incurred by TMS or any third party which are the result of unauthorized use of Client Account, i.e. Customer’s account. In case of discovery of any unauthorized use of Client Account or Customer’s account, please notify us without delay by sending an email to help@trafft.com.
• Client, i.e., Customer, shall not be engaged in any activity violating the privacy of others, or any misuse of unlawful processing of personal data, nor will publicly display or use Trafft to share any inappropriate content or material. Clients and Customers are obliged to refrain from violating any applicable law or regulations in connection with their use of Platform, Service, or Website.
• Client, i.e., Customer, shall not conduct web or data scraping on or related to Platform, including without limitation collection of data through any software simulating human activities, any bot or web crawler.
• Client, i.e., Customer is obliged not to automate access to Website or Service, including, without limitation, through the use of APIs, bots, scrapers or other similar devices.
• Client, i.e., Customer, shall not access Service or Platform with a purpose to build a competitive product or service, a product using similar ideas, features, functions, or graphics, or to copy any ideas, features, functions, or graphics.

Super Admin grants for every Manager and Employee registered by such Super Admin that such Manager, i.e., Employee shall comply with all legal requirements applicable to the use of Service, particularly these TOU.

The client is fully responsible for all the activities and conducts that occur under its Client Account. The same applies to the Customer regarding the Customer’s account used for accessing Trafft.

13. CLIENT CONTENT, CLIENT DATA, AND PERSONAL DATA PROTECTION

Use of Client Content

Client and Customer understand that Client, i.e., Customer, is solely responsible for any Client Content, i.e., the content of Customer, uploaded, processed, entered, or otherwise transmitted in connection with Client’s/Customer’s use of Service and/or Platform. By entering into this Agreement, Client/Customer warrants represents and covenants that Client/Customer is the owner or has obtained a valid and enforceable license to use all Client Content, i.e., the content of Customer.

Neither Client Content nor the content of Customer shall infringe, misappropriate, or violate the rights of any subject (including both natural persons and entities), or any applicable law, rule, or regulation of any government authority of competent jurisdiction.

Without limiting the foregoing, any feature(s) of Service and/or Platform that may permit Client/Customer to temporarily save or otherwise store Client Content/content of Customer is offered solely for Client’s/Customer’s convenience and TMS does not guarantee that Client Content/content of Customer will be retrievable. Client/Customer is solely responsible for saving, storing, and otherwise maintaining Client Content/content of Customer, including by making backup copies on the appropriate independent systems not relying on Service and/or Platform.

In case Manager or Employee submits, uploads, or creates content within Dashboard, Manager, i.e., Employee understands and accepts that Super Admin of such Dashboard has an exclusive, non-transferable, and irrevocable license to access, copy, modify, and/or remove such content, including but not limited to adding or removing Manager, i.e., Employee from the team or enabling or disabling access to Dashboard to Manager, i.e., Employee.

TMS holds the right to refuse, limit or cancel Service, disable Client Accounts or accounts of Customers, or remove or edit Client Content/content of Customer at its sole discretion. Therefore, in the event of the investigation of purported violations of the Agreement, TMS reserves the right to review Client Content/content of Customer to resolve the issue (for instance, to prevent harmful or illegal activity). TMS may also access Client Content/content of Customer when providing technical support or when performing other legal obligations under this Agreement.

Nevertheless, TMS has no obligation to monitor Client Content/content of Customer and shall make no attempt to do so. Also, TMS is not obliged to remove any Client Content/content of the Customer.

TMS shall not be held liable for any loss, damage, expense, or other harmful consequences to any Client or Customer resulting from Client Content/content of Customer.

Exposure risk

Client and Customer understand and agree that providing and using cloud-based services involves risks of unauthorized disclosure or exposure of data and by accessing and using Platform, Client and Customer accept such risk. TMS offers no representation or warranty that Client Content (particularly including Client Data) or any other content of Customer will not be exposed or disclosed through omissions, errors, or the unlawful activities of third parties.

Data accuracy

TMS has no responsibility for the accuracy of data uploaded to Platform by Client or Customer, including without limitation Client Data and any other data uploaded by Client or Customer.

Use of Client Data

TMS shall not, unless previously explicitly authorized by Client:

1. access, process, or otherwise use Client Data other than as necessary to provide Service and use of Platform or in accordance with DPA (as defined in Privacy Policy),
2. intentionally grant any third-party access to Client Data, including without limitation other Clients or Customers, with the exception of the subcontractors subject to a reasonable non-disclosure agreement.

Notwithstanding the foregoing, TMS may disclose Client Data as required by applicable law or by proper legal or governmental authority. TMS shall give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense.

As between Parties, Client retains the sole ownership of Client Content.

Compliance with data protection laws

Providing TMS’ Service involves the processing of Clients’ personal data (as defined in the Privacy Policy), including the processing of personal data of Managers and Employees invited or enabled to use Trafft by Enterprise and personal data of Customers provided within Trafft. Purposes and means of processing are determined by Client and not by TMS, resulting in the Client being the data controller. By providing Service TMS acts as a data processor and processes personal data on behalf of and according to instructions provided by Client. In some cases, TMS may act as a data controller and in such an event TMS shall ensure that it has a valid legal ground for the processing of data and that the personal data are collected solely for the purposes permitted under the applicable data privacy law.

According to all the applicable privacy legislation, the Client is fully responsible to ensure the legal grounds for processing the personal data as defined in Privacy Policy, as well as to properly assess the proportionality of the personal data processing. By entering into the Agreement, the Client warrants and grants to TMS that Client has secured a valid purpose and legal basis to process personal data via the Service. Client warrants and grants that it has informed the data subjects (as defined in Privacy Policy) on all aspects of the processing via Service or Platform prior to the beginning of the processing, and that it has adopted the adequate policies and/or has undertaken necessary steps stipulated by the applicable data protection legislation, if applicable (such as, for instance, conducting DPIA).

Some features available of Trafft may prove to be more intrusive to privacy than others. Before activating a certain feature, the Client must make sure to understand how the feature operates, including but not limited to how TMS may process personal data on behalf of Client. TMS strongly suggest the use of such features only exceptionally, and solely when Client as the controller can secure lawful processing of personal data under the applicable privacy legislation. In any other event, TMS suggests Client refrain from the use of such features.

Each Client shall indemnify, defend, and hold harmless TMS in full and on demand from and against any and all liabilities, claims, demands, damages, losses, or expenses (including legal and other professional adviser’s fees and disbursements), interests and penalties incurred by TMS arising out of or in connection with Client’s breach of the obligations stipulated in this paragraph.

Consequences of the unlawful use of Client Content/content of Customer

TMS may, at its sole discretion, disable, close, temporarily or permanently limit access to any Client Account or account of Customer without any notice to Client/Customer in case TMS becomes aware of:

• the illegal Client Content/content of Customer,
• activities that infringe third-party’s Intellectual Property Rights, personal data, or any other right,
• any activities infringing these TOU.

TMS shall not be liable for any loss, damage, or undesirable consequences arising from such action.

If Client Account or account of Customer is delinquent, suspended, or terminated for 30 (thirty) days or more, TMS may irreversibly suspend Client Account, i.e., the account of Customer in accordance with Section 17 (Termination – headline Client Data download and deletion).

Security breach

External breach. In case of an accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure of, or access to Client Data, conducted by any subject other than Client’s employees, contractors, or agents, upon the discovery of such security breach TMS shall:

1. initiate remedial actions compliant to applicable law and consistent with industry standards,
2. notify Client of the security breach, its nature, and scope, the remedies TMS will undertake, as well as the timeline projected by TMS in terms of the security breach remedy.

The client is responsible for fulfilling its obligations under the applicable law.

Internal breach. In the event of a security breach (as defined by applicable law) conducted by Client’s affiliate, employee, contractor, or agent, or which has occurred as a result of Client’s failure to maintain its systems, network, or Client Data in an appropriately secure manner, Client shall be solely responsible for initiating remedial actions. Additionally, the Client shall notify TMS immediately of such a security breach and of the following steps which Client will undertake to remedy such breach. TMS keeps sole discretion to take any actions, including suspension of Client’s access to Service, in order to prevent any harm to Client, TMS, Service, Platform, Customer, or third parties. The Client waives any right to file a claim against TMS for possible losses incurred as a result of TMS’s actions undertaken in accordance with this paragraph.

14. WARRANTIES DISCLAIMER

Service is provided on an “as is” and “as available” basis. Client and Customer understand that they use Trafft at their sole risk.

TMS hereby disclaims, to the fullest extent permitted under the applicable law, all statutory warranties, including warranties arising from the course of dealing, course of performance, or usage of trade. Warranties of TMS related to Platform, Service, or Website which are not explicitly stated herein shall be deemed withheld.

Client, i.e., Customer shall be solely responsible for any damages Client, i.e., Customer may suffer resulting from the use of Service. No written or oral information or advice provided by TMS or its authorized representatives shall be deemed as a warranty or in any way extend the scope of TMS’s obligations.

Without prejudice to the generality of the previous provisions, TMS does not warrant:

1. fitness for a particular purpose of Client or Customer nor that Service will meet Client’s or Customer’s specific requirements;
2. that Service will be uninterrupted, timely, secure, error-free, or of satisfactory quality;
3. accuracy or reliability of the results obtained from the use of Service;
4. correction of any errors in Service which may occur.

TMS and/or its suppliers make no representations about the suitability, reliability, availability, continuity, timeliness, and accuracy of Platform and Service.

Without limiting the foregoing, TMS is not designed or licensed for use in hazardous environments requiring fail-safe controls (for example, aircraft navigation/communication systems, air traffic control, medical device and life support machines, or weapon systems) in which the failure of Platform may result in death, personal injury or physical and/or environmental damage. Accordingly, Agreement excludes any high-risk activities (including previously enlisted examples), and Client and Customer agree not to use Platform in connection to such high-risk activities.

TMS reserves the right (but has no obligation) to, without notice to Customers and Clients who are using Free Plan, i.e., with one month notice to Clients using any Paid Plan, at any time:

1. modify, suspend, or terminate any operations of or access to Trafft, or any part of Service or any feature, for any reason;
2. modify, change, upgrade Trafft or any part of it;
3. interrupt the operation of Trafft, as necessary to conduct routine or non-routine maintenance, error corrections, or other changes.

Notice for Customers. TMS hereby particularly disclaims any warranty related to services provided (or not provided) by Clients to Customers, including booking, rescheduling, modifying, or cancellation of the appointments, as well as any warranties related to billing of Client’s services. Therefore TMS strongly suggests that Customers prior to booking an appointment with the Client and making any payments related to the Client’s services carefully inform themselves about the Client and get familiar with any additional terms of use (if any) applicable to Clients in order to ensure the safety of their bookings at Client Page.

TMS does not conduct any assessment or audits of Clients regarding their businesses and the provision of services, including the lawfulness of the Client’s business activities. Therefore, TMS does not guarantee that any services provided via Trafft are compliant with applicable laws and in particular cannot be liable for any obligations or damages arising from the business relationship between Client and Customer.

15. LIMITATION OF LIABILITY

General. TMS and/or its suppliers, employees, and representatives shall be liable (to the maximum extent permitted by the applicable law) in no event for the following:

1. any losses, damages, expenses, or other harmful consequences occurred as a result of any subject’s use or inability to use Trafft;
2. any installation, implementation, customization, or modification of Platform not conducted by TMS;
3. any failure to apply available update, service pack, fix, or upgrade that would prevent the harmful event;
4. any unauthorized access to Client Content or content of Customer;
5. any unauthorized use of Client’s or Customer’s credentials for access to Trafft.

To the greatest extent permitted by the applicable law, under no circumstances shall TMS and/or its suppliers, employees, and representatives be liable for any indirect, punitive, incidental, special, consequential damages or any damages whatsoever (including, without limitation, damages for the loss of use, data, or profits, or business interruption) arising out of or in any way connected with:

• the use or performance of Trafft,
• the delay or inability to use Trafft and/or Service, including the provision of or failure to provide Service,
• Platform, Website, Service, any products, information, or related graphics obtained through Trafft, or otherwise arising out of the use of Trafft, whether based on contract, tort, negligence, strict liability, or otherwise.

In case any of the foregoing limitations occur to be unenforceable or in the event any liability of TMS is established, to the maximum extent permitted under the applicable law, Client agrees that the entire aggregate liability of TMS and Client’s sole remedy arising out of or related to Agreement, Platform, or Service shall be limited to monetary damages that in the aggregate may not exceed the sum of any amount paid (if any) by that Client within twelve months preceding the delivery of the notice to TMS regarding the dispute for which the remedy is sought. In the event Client did not have any obligations including any payments during such period, as well as in the case this section applies to Customer, monetary damages shall not in aggregate exceed the sum of 100 EUR (hundred Euros).

Client and Customer hereby understand and agree that this limitation of liability represents a reasonable allocation of risk and is the fundamental element of the agreement between TMS and Client/Customer. Client, i.e., Customer additionally understands that Platform, Service, and Website would not be provided without such limitations.

Taking into account that some of the limitations of liability stated in this section may not be applicable to Client or Customer, due to the fact that certain countries do not allow the limitation of particular damages, Client and Customer may have some additional rights. Regardless, in case any part of this section is held to be invalid under the applicable law, the invalidity of such portion shall not affect the validity of the remaining parts of the applicable sections.

Exceptions. Mandatory liability of TMS shall not be excluded in the following cases:

1. if TMS commits a willful breach of any of its obligations arising from the Agreement,
2. in the event of death or personal injury caused by a defective item provided or produces by TMS.

Notice for Customers. TMS shall have no liability related to services provided (or not provided) by Clients to Customers, including booking, rescheduling, modifying, or cancellation of the appointments, as well as any liabilities related to billing of Client’s services. Therefore TMS strongly suggests that Customers prior to booking an appointment with the Client and making any payments related to the Client’s services carefully inform themselves about the Client and get familiar with any additional terms of use (if any) applicable to Clients in order to ensure the safety of their bookings at Client Page.

Force Majeure. Neither Party shall be liable for any violation of the obligations arising from this Agreement due to a circumstance that could have not been reasonably foreseen and which is beyond the control of Parties, such as, for instance, the force of nature, an act of a legislative or executive authority, war, civil unrest, the act of terror, strike, non-trivial cyber-attack, failure of a third-party hosting, internet failure, or any other circumstance qualifying as a force majeure under the applicable law. This exception shall apply solely to the extent that the respective circumstance prevented or hindered Party’s performance.

For the avoidance of doubt, this section:

1. has no intention of derogating or limiting the application of any statutory limitation or exclusion of liability,
2. shall not be construed to limit the amount of or excuse Client from any payment obligation arising from Agreement.

TMS does not provide legal advice in terms of compliance, data privacy, or other relevant applicable laws in the jurisdictions in which Client or Customer uses Service.

Any statements made by TMS to Client or Customer shall not constitute legal advice.

16. INDEMNIFICATION

Both Client and Customer (as applicable) agree to indemnify and hold TMS harmless from any and all demands, losses, liabilities, claims, or expenses (including any attorneys’ fees) made against TMS by any third party due to or arising out of or in connection with the use of Trafft and Service. The same applies to Super Admin in connection with the use of Trafft and Service by Managers and Employees. This Client’s/Customer’s obligation includes, but is not limited to demands, losses, liabilities, claims, or expenses arising out of:

1. Client’s/Customer’s use of Service and/or Platform in violation of this Agreement and/or any applicable law, and/or arising from a breach of this Agreement and any applicable law;
2. any third-party claim of infringement of copyright or other Intellectual Property Right, or invasion of privacy arising from hosting Client Content or content of Customer on Platform, and/or making available Client Content or content of Customer to other users of Platform, and/or the actual use of Client Content or content of Customer by other users of Platform or related services in accordance with Agreement;
3. any activity related to Client Account or account of Customer, undertaken by Client, i.e., Customer or other person accessing Client Account or account of Customer with or without Client’s/Customer’s consent unless such activity was caused by act or default of TMS.

Additionally, Client and Customer (as applicable) shall defend, indemnify and hold harmless TMS, its officers, directors, employees, contractors, agents and representatives from and against all claims made by, and all damages, liabilities, penalties, fines, costs and expenses payable to any third party, arising from Client’s:

• breach of Agreement,
• use of Service,
• processing of Client’s or Customer’s personal data,
• contributions to Service,
• infringement of any Intellectual Property Right or any proprietary or personal right.

17. TERMINATION

The agreement shall remain in force and continue until:

1. Subscriber cancels the subscription and/or Client/Customer (as applicable) requests for Client Account/Customer’s account and Client’s Dashboard (as applicable) to be deactivated and disabled;
2. terminated by TMS.

Termination by Client or Customer

Client. The Client may cancel the subscription at any time via the Super Admin account. If the Client cancels upon the subscription renewal date, the Client will not receive a refund for any amounts that have previously been charged. Cancellation will be effective at the end of the then-current Subscription Term, subject to applicable law, and Client may use Service until the cancellation is effective, unless the access is suspended or terminated in accordance with Agreement of the applicable law.

In case the Client wishes to terminate Paid Plan and continue with the use of the Free Plan or upgrade/downgrade your Paid Plan to another Paid Plan, please see Section 11 (Upgrading or Downgrading Plan).

In case the Client uses any Paid Plan involving a recurring payment of a fee, TMS will stop charging fees for Service from the moment Client notifies us that Client wishes to cancel or that Client does not want to automatically renew the subscription. Until such cancellation, Client understands that TMS has the right to automatically continue with the collecting of the then-applicable fees and any taxes using any payment instrument of Client’s we have previously collected, in accordance with Section 10 (Payment) herein. Unless otherwise required by the applicable law, TMS may exercise this right without any notice to the Client.

The Client understands that cessation of use of Service does not entitle Client to any refund. Client not using Service shall cancel the subscription to any Paid Plan and switch to Free Plan or terminate the use of Trafft completely.

The Client is aware and accepts that in case of termination of use of Trafft does not necessarily mean that Dashboard and Client Account will be automatically deleted. This is also applicable to Client Content provided by that Client.

Customer. The Customer may request Trafft to delete their created account (if logged applicable) at any time in order to terminate the Agreement. If Customer has been accessing Trafft as a guest, such Customer shall contact Trafft directly via help@trafft.com and request the deletion of the data they have provided to Trafft, in accordance with Privacy Policy. In both cases, TMS shall previously check with respective Client on whether such Customer has any unsettled obligations towards Client and request such Customer to fulfil all the respective obligations (if any) in order for TMS to comply with Customer’s request. However, as an exception, some data may be retained to determine, pursue, or defend claims and counterclaims.

Termination by TMS

Client hereby agrees that TMS may immediately terminate Agreement in case Client does not pay the fees when due in accordance with Paid Plan.

TMS reserves the right to cancel the Client’s subscription and Client’s use of Platform and/or Service.

In case Client engages in any conduct or activities that are identified by TMS (at its sole discretion) as the violation of Agreement or the rights of TMS or third parties, or otherwise inappropriate, TMS may deny access to all or any part of Service or terminate Client’s account with or without prior notice. TMS is entitled to deny Client’s access to Service, terminate this Agreement, or suspend Client Account without limitations.

TMS has the right to, at its sole discretion, at any time and regardless of the reason, terminate Trafft Service, this Agreement, or suspend or terminate any Client Account. In such case, TMS shall notify Client via email address designated by Client when creating Client Account, or any other email address Client may have provided to TMS.

In case you are an authorized user (natural person) within Enterprise, your Enterprise may decide to revoke or terminate your authorization to access the Platform.

Customer. TMS may, at its sole discretion, terminate Agreement with Customer in case no activity on Customer’s account (if created) is reported within 1 (one) year of the day such account has been created.

Survival in case of termination

In case Agreement is terminated, the following provisions shall survive:

• any provision stipulating Client’s obligation to pay for Service,
• Section 6 (Intellectual Property),
• Section 14 (Warranties Disclaimer),
• Section 15 (Limitation of Liability),
• Section 16 (Indemnification),
• Section 22 (Governing Law & Competent Court; Dispute Resolution),
• Section 23 (No Class Action),
• as well as any other provision of Agreement that must survive for Agreement to fulfil its essential purpose.

Client Data download and deletion

In case Agreement is terminated, Client may download all information (including entire Client Content or content of Customer) provided, inputted, or uploaded to Trafft databases via downloading a detailed report.

Upon termination of Agreement, Client Account/account of Customer shall be irreversibly suspended and all Client Content and Client Data/content of Customer will be anonymized in order to make Client Content/content of Customer unreadable. Client and Customer understand that Client Content and Client Data/content of Customer shall not be deleted but retained in anonymized (unreadable) form by TMS for statistical purposes. Without regard to the previous sentence, all Client Content, including Client Data, as well as any content of Customer, shall be deleted upon the expiration of a 2 (two) months period after the termination of Agreement.

Managers and Employees are aware that only Super Admin may decide on Client Data on Dashboard and may dispose of, edit, or keep such Client Data regardless of Manager’s/Employee’s activities on Trafft.

18. SEVERABILITY

In case any provision of this Agreement is found invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of Agreement, which shall remain in full force and effect.

If any provision of Agreement violates any mandatory rule of the applicable law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended to comply with the law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible.

19. NOTICES

Client and Customer may deliver notices to TMS to the following address: help@trafft.com or any other address specified in Section 1 (Definitions).

TMS may give notices to Client/Customer via the email address associated with Client Account/account of Customer (if created) or (exceptionally) by mail or courier to the address provided for that Client/Customer within the information on Client Account/account of Customer.

Notice shall be deemed to have been received:

1. the next day if given via notice on Client Account/account of Customer or via email,
2. five workdays after posting the notice via courier or registered post. Workday shall have the meaning of workdays at TMS’s registered seat.

20. NO WAIVER

Failure by TMS to exercise or enforce any right or provision of TOU shall not constitute a waiver of such right or provision.

21. THIRD-PARTY SERVICES AND WEBSITES

In case TMS enables access to data from another service provider through linking, TMS does not carry any responsibility for such information.

Website may contain links to other websites which are in the ownership of other legal or natural persons. Each of such websites has its terms of use and Privacy Policy on handling personal data, and such terms and policies may differ significantly from the ones applicable to the use of our Website. TMS has no control over such websites and shall not carry any responsibilities neither for the availability of those websites nor for the terms of use and privacy policies applicable to their visitors and users.

Placing links to third-party websites on Website does not represent any kind of recommendation or approval of services or products offered through such websites by TMS.

22. GOVERNING LAW & COMPETENT COURT; DISPUTE RESOLUTION

Governing Law. Agreement and any matter or dispute arising out of or related to the subject matter of Agreement shall be governed, construed, and enforced in accordance with the laws of the Republic of Serbia, without regard to its conflict of laws rules. Specifically excluded from application to this Agreement is the law known as the United Nations Convention on the International Sale of Goods.

Mandatory negotiations. Taking into account the high cost of arbitration, Parties agree to the following dispute resolution procedure: in the event of any Dispute, Party asserting Dispute shall first try in good faith to settle such Dispute by delivering the written notice to the other Party by first-class or registered mail. Such notice shall comprise the description of the facts and circumstances (including any relevant documentation) of Dispute and allowing the receiving Party 30 days in which to respond to or settle the Dispute.

Notice shall be delivered in accordance with Section 19 (Notices), in particular to the following addresses:

1. to TMS: Milutina Milankovića 11B/3, Belgrade, the Republic of Serbia
2. to Client/Customer: Client’s/Customer’s last used address provided within Client Account/Customer account or the address of the registered seat of Enterprise. In case no
   such address exists, or the delivery to such an address is unsuccessful, the notice shall be sent to the email address connected to Client Account/ Customer account.

Parties mutually agree that the above-described dispute resolution procedure is a condition precedent that must be satisfied before the initiation of any arbitration or filing any claim against the other Party.

Dispute Resolution. In case Parties fail in resolving Dispute as described above, any disputes arising out of or in connection with Agreement shall be finally settled by arbitration organized in accordance with the Rules of the Belgrade Arbitration Center (the Belgrade Rules). The number of arbitrators shall be one. The place of arbitration shall be Belgrade, the Republic of Serbia. The language to be used in the arbitral proceedings shall be the English language.

In case Parties’ agreement with respect to arbitration proves to be void or unenforceable, all Disputes to which it was intended to apply shall be subject to the exclusive jurisdiction of the competent court in Belgrade, the Republic of Serbia. Regardless, in such a case, the mandatory negotiation clause shall remain applicable as a precondition to initiation of the court resolution of Dispute.

This Section shall survive termination of Agreement.

Notwithstanding the provisions above, TMS may, at its absolute discretion, assert and seek the protection of its Intellectual Property Rights and rights concerning confidential information or data processing anywhere in the world.

23. NO CLASS ACTION

With the exceptions of events explicitly prohibited by law, as a condition of the use of Platform and/or Service, Client/Customer agrees that any and all Disputes arising out of or connected with Platform and/or Service shall be resolved individually, without resort to any form of class action.

Any arbitration under these TOU shall take place on an individual basis. Class arbitrations and class/representative/collective actions are not permitted.

Parties agree that each Party may bring claims against the other Party only in each individual capacity and not as a plaintiff or class member in any putative class, collective and/or representative proceeding, such as in the form of a private attorney general action against the other. Further, unless both Parties agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

24. ENTIRE AGREEMENT

Agreement (as amended from time to time) including any linked documents or documents that are expressly included in Agreement constitutes the entire agreement between Parties relating to the subject matter hereof and supersedes all prior agreements and understandings between Parties with respect to that subject matter.

In case of conflict between any provision herein and any statement, representation, or other information published on Website or contained in any other materials or communications the provision in Agreement shall prevail.