Terms of Service

Please read these Terms of Service, the Privacy Policy: https://whomlab.com/privacy-policy/, and all other documents referred to herein (collectively, the “Terms“) carefully before you start using the Service. By accepting these terms whenever this option is available to you, by signing a written agreement which refers to these Terms, or as otherwise described herein, You conclude an agreement on the use of the Service (the “Agreement“) which includes the Terms. If you do not agree to the Terms, you must not access or use the Service.

This version of the Terms is effective from 15 May 20203.

Notwithstanding the provisions specified in these Terms of Service, if you are a consumer, i.e., a person purchasing the Services outside the scope of your business activity, the rights and obligations are specified in the Addendum to these Terms of Service: https://whomlab.com/addendum-for-consumers/

1.            Definitions

1.1.        Upper case pronouns “We”, “Us” and “Our” refer to WhomLab s.r.o., with registered office at SNP 2349/13, Ústí nad Labem-centrum, 400 11 Ústí nad Labem, ID number: 08841977, incorporated under the laws of the Czech Republic, registered at Regional Court in Ústí nad Labem under file no. C 44648.

1.2.        Pronouns “you” and “your” refer to you as a customer of the App, course, or other agreed services (collectively, the “Services”) including services offered through www.whomlab.com (the “Website”) and the App. If you are using the Service on behalf of a legal entity, then you, as an individual, represent that you have the authority to bind that entity to the Agreement, and “you” and “your” also refer to that entity.

1.3.        “App” is the mobile app called WhomLab available for download on the Google Play and AppStore distribution platforms. Use of the App is also governed by the Terms of Use: https://whomlab.com/app-terms-of-use/

1.4.        “Authorized Users” are you, your employees, consultants, contractors, and agents who are authorized by you to access or use the Services under the rights granted to you pursuant to the Agreement.

1.5.        “Documentation” are documents describing features of the Service, requirements for its use, and implementation. A non-exhaustive list of documentation is available on the Website and in the App.

1.6.        “Resultant Data” are data related to your use of the Services that are used by Us in an aggregate and anonymized manner, including statistical and performance information related to the operation of the Services.

1.7.        “Your Data” are data, instructions, materials, and other content that is provided by Authorized User, or that We receive by or through the Service. Your Data does not include Resultant Data.

1.8.        “Your Systems” means your information technology infrastructure, including computers, software, databases, and networks, whether operated directly by you or through the use of third-party services.

2.            COMMISSIONING

2.1.        To commission the Service, We need you to arrange all organizational conditions and provide all assistance in accordance with the Documentation, required by these Terms, or otherwise necessary to make the Service operational without undue delay, but no later than 5 days from request.

2.2.        Unless we agree otherwise, We will commission the Service by providing you with access details to use the Service. You may check that the Service has been commissioned correctly within 3 days of receiving the access details (“acceptance period”). Within the acceptance period, you must confirm that the Service has been commissioned correctly or report any detected defects. Once you confirm that the Service has been commissioned properly or if you do not report any defects within the acceptance period, this constitutes your acceptance of the proper commissioning of the Service. Further, acceptance of the proper commissioning of the Service occurs if you begin to use the Service beyond its testing.

2.3.        If you request any modifications to the Service (for example, additional functions or courses), this is a request for extra work. Upon receipt of such request, We will propose the terms and conditions for its delivery (in particular: time, price, cooperation requirements, etc.). Unless we agree otherwise, negotiations on extra work shall not affect your obligation to accept the Service and pay the agreed price. If we agree to the terms and conditions, you will pay Us the price for extra work based on an invoice issued before We start the extra work.

3.            Services AND INTELLECTUAL PROPERTY RIGHTS

3.1.        Subject and conditioned on your and Authorized Users’ compliance with the Agreement, We hereby grant you a non-exclusive, non-transferable right to use the Service during the term of the Agreement, solely for use by Authorized Users in accordance with the Agreement. Such use is limited to your internal use.

3.2.        Nothing in the Agreement grants any license or other right to any intellectual property rights in or relating to the Service, or Third-Party Materials. All rights to the Service and the Third-Party Materials are and will remain with Us and the respective rights holders. You do 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 the creation of such data, you assign to Us all rights relating to the Resultant Data. We reserve the right to make changes to the Service that We deem necessary or useful to comply with applicable law, and enhance the quality of Service, cost efficiency, or performance.

3.3.        We may suspend, terminate, or otherwise deny your, Authorized User’s, or any other person’s access to or use of the Service, without incurring any resulting obligation or liability, if:

a)            We receive a judicial or governmental request or order that requires Us to do so,

b)            We believe that you or any Authorized User 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 you or Authorized User has been, or is likely to be involved in fraudulent or unlawful activities,

c)            you do not pay the fees when due, or We receive a chargeback.

4.            Use Restrictions

4.1.        You may not, and may not permit any other person to, access or use the Service except as expressly permitted by the Agreement and, in the case of Third-Party Materials, the applicable third-party license terms. You shall not in particular, but not exclusively:

a)            copy, republish, display, distribute, transmit, sell, rent, lease, loan, or otherwise make available in any form or by any means all or any portion of the Service,

b)            modify, create compilations or derivative works of the Service, remove, or alter trademarks, Documentation, disclaimers, or notices from Services,

c)            access or use the Service in a manner or for a purpose that infringes any intellectual property right or other right of any third party or that violates any applicable law.

5.            Your Obligations

5.1.        You shall maintain and operate Your Systems in accordance with the Documentation and Our recommendations, provide Our personnel with such cooperation as is necessary for Us to commission or provide the Service, and provide all cooperation and assistance as We may reasonably request to enable Us to exercise Our rights and perform Our obligations under and in connection with the Agreement.

5.2.        If you fail to provide Us with cooperation or fail to fulfill any other obligation under the Agreement, this constitutes an obstacle that prevents Us from performing Our obligations under the Agreement and entitles Us to suspend the performance of the Agreement. The duration of the obstacle for which We are unable to perform is calculated from the first day on which the obstacle occurs until the moment you inform Us of its removal. The deadlines for the performance of Our obligations under the Agreement are automatically extended by the duration of the obstacle and the time necessary to restore the continuity of Our performance to you.

5.3.        If you become aware of any actual or threatened activity prohibited by Section 4.1, you must, and must cause your Authorized Users to, immediately take all reasonable measures within their respective control that are necessary to stop the activity and to mitigate its effects (including by discontinuing and preventing any unauthorized access to the Services and erasing data to which any of them have gained unauthorized access) and notify Us of any such actual or threatened activity.

5.4.        You are solely responsible for:

a)            Your Systems and the fact that they meet the requirements set out in the Documentation. If you do not meet these requirements, the Service may not function properly or at all,

b)            legality of the processing of Your Data. In particular, you are responsible for ensuring that you are entitled to provide Us with all of Your Data and that Our use and processing of Your Data for the purpose of providing the Service does not infringe any third-party rights, in particular intellectual property rights or privacy rights or obligations under any law or regulation. You are required to inform persons whose personal and other data You transfer to Us of such transfer, and to obtain consent to such transfer of personal data where necessary,

c)            use, security, and protection of access details from unauthorized use; and

d)            all access to and use of the Service through Your Systems or the access details of Authorized Users, including all results obtained from such access or use and all conclusions, decisions, and actions based thereon.

6.            Fees and Payment

6.1.        Unless we agree otherwise (e.g., in a written and signed Agreement), you shall pay Us the fees in accordance with the currently effective price list immediately upon conclusion of the Agreement. We may change the price list, institute new fees, or increase the fees for the next renewal term by providing written notice to you prior to the commencement of such term. The obligation to pay the fees is not tied to your actual use of the Service. In the event that You do not use the Service, this shall not affect Our right to payment of the fees in full. Unless expressly set forth herein, the fees are non-cancelable and non-refundable.

6.2.        Price for certain Services (e.g. the HR platform) may depend on a designated number of Authorized Users per relevant subscription term. If you exceed the number of Authorized Users in any subscription term, you shall also pay Us the applicable fees set forth in our price list, such fees for excessive use are due at the end of each subscription term.

6.3.        All fees and other amounts payable by you under the Agreement are exclusive of taxes and similar assessments. You shall make all payments without any deduction or charge in respect of taxes, tariffs, bank, or other charges. If We are required to make any such deduction or charge, You shall pay Us any additional amounts necessary to receive the full (net) amount stated on the invoice which We would have received without deduction or charge under the additional invoice.

6.4.        Payment of the price shall be made via (available payment method may differ according to the Service):

a)            Stripe payment gateway. This payment method is subject to separate terms and conditions available at: https://stripe.com/en-cz/legal/ssa. The price is due immediately after the conclusion of the Agreement and payment instructions will be displayed to you immediately. This is the default payment method that applies in case of Agreements concluded via Our Website.

b)            Purchasing system of the AppStore or Google Play. This payment method is subject to separate terms and conditions available within the store. In this case, the price is also due immediately after the conclusion of the Contract, and payment instructions will be displayed to you immediately. This is the default payment method that applies in case of Agreements concluded via AppStore and GooglePlay, or

c)            Bank transfer based on the invoice issued by Us. You are required to use any payment identifiers (e.g., variable symbol) specified when making a payment. The Price is due within 7 working days of the Agreement’s conclusion. This is the default payment method that applies in the case of printed and signed Agreements.

6.5.        If you fail to make any payment when due, then in addition to other remedies:

a)            We may charge interest on the past due amount at the rate of 0.5% per each commenced day of delay or, if lower, the highest rate permitted under applicable law,

b)            You shall reimburse Us for all costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees, and

c)            We may suspend the provision of the Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to You or any other person by reason of such suspension.

6.6.        We reserve the right to immediately suspend access to the Service, without prior notice, in the event we receive notice of a chargeback (as defined below). Contacting your bank or credit/debit card provider and rejecting, canceling, or contesting the charge of any amount payable in connection with your use of the Service (“Chargeback”) will be considered a breach of your payment obligations under the Agreement. We also reserve the right to dispute any chargeback received. We may take reasonable steps to restrict your future access to our Service if We believe that you have maliciously requested a chargeback.

7.            Premium – applies only for the provision of the app

7.1.        We provide the App as a service for free with limited features. There is also a premium version which includes, for example, access to all matrices and video lessons for all six levels, unlimited practice of all tests, and learning the right answer in the partial tests. You will be able to use the premium version for a 3-day trial period for free. After the expiration of the trial period, You will not be allowed further access to the premium version until you pay the price which is available in the App. However, We may agree individually to provide You with the premium version for free or at a lower price.

7.2.        Information about the exact scope of the premium version is provided directly in the App. However, such information is for informational purposes only and does not constitute an offer to provide You with the paid services, nor We are obligated to provide You with the paid services. Section 1732(2) of Act No. 89/2012 Coll., Civil Code, as amended, does not apply.

7.3.        Unless we agree otherwise, by ordering the premium version you agree to pay the price for continued access to the premium version which is payable after the end of the free trial version of the App. The current price list of the premium version and subscription period are available in the App. The price listed in the App will be converted to your local currency and the actual charges may vary depending on your country of residence.

7.4.        The chosen subscription period will automatically renew for an additional subscription period unless earlier terminated in accordance with these Terms or unless You turn off the automatic renewal of the subscription at the user account at least 24 hours prior to the end of the current subscription period.

8.            CANCELLATION FEE – applies only for the provision of courses

8.1.        Course includes individual courses, workshops, seminars, consultations, or mentoring.

8.2.        It may happen that you are unable to attend the arranged course. In such a case, please contact Us as soon as possible via email at [email protected]. In the e-mail message, please include your name, e-mail address, the date of the course, and the invoice number, if one has been issued to you.

8.3.        You may cancel the course by written notice without giving any reason under the following conditions:

1. if you cancel a course (consultation) within 48 – 24 hours prior to the agreed date, We are entitled to charge a cancellation fee of 50% of the price,
2. if you cancel a course (consultation) less than 24 hours before the agreed date, We are entitled to charge a cancellation fee of 100% of the price,
3. if you cancel a course (workshop) within 7 days – 24 hours prior to the agreed date, We are entitled to charge a cancellation fee of 50% of the price, and
4. if you cancel a course (workshop) less than 24 hours before the agreed date, We are entitled to charge a cancellation fee of 100% of the price.

8.4.        The cancellation fee listed above can be deducted from the price you have already paid.

8.5.        For cancellation of the course purchased through the App, separate rules of the store operators set out in the App shall apply.

8.6.        If We are unable to commence the provision of the course for reasons attributable solely to Us within 30 days of the commencement date stated in the Agreement for any reason, both of us shall be entitled to withdraw from the Agreement.

9.            Confidentiality

9.1.        In connection with the Agreement each of us as a “Disclosing Party” may disclose or make available Confidential Information to the other one as a “Receiving Party”. “Confidential Information” is any information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing.

9.2.        Confidential Information does not include information that:

a)            was known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;

b)            was or becomes generally known by the public other than by the Receiving Parties or any of its representatives’ noncompliance with this Agreement;

c)            the Receiving Party can demonstrate by written or other documentary records that was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

9.3.        As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

a)            not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; and

b)            except as may be permitted, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under Article 9; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth therein.

9.4.        If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, the Receiving Party may disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. To the extent permitted by applicable Law, the Receiving Party shall notify the Disclosing Party in writing of such requirement.

9.5.        Each Party’s obligations under this Article 9 will last throughout the Agreement term and for five years thereafter; provided, however, with respect to any confidential information that constitutes a trade secret, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such confidential information remains subject to trade secret protection under applicable law.

10.         Representations and Warranties

10.1.     Each party represents and warrants to the other party that execution of the Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party.

10.2.     You represent and warrant to Us that you own the necessary rights and consents relating to Your Data so that, as received by Us 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.

10.3.     EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL SERVICES ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM THE COURSE OF ACTION, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY THAT THE SERVICE OR RESULTS OF THE USE THEREOF WILL MEET ANY REQUIREMENTS, BE AVAILABLE OR OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE ACCURATE. 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 FOR YOU TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.

11.         Limitation of Liability

11.1.     TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, IN NO EVENT WILL WE 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 PROFIT; (b) 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 YOU WERE 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.

11.2.     TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF US 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 US UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

12.         Term and Termination

12.1.     In addition to any other express termination right set forth in the Agreement:

a)            We may terminate the Agreement, effective on written notice to you, if you fail to pay any amount when due hereunder, or breach any of your obligations under Section 4.1 or 9,

b)            either of us 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

c)            either party may terminate this Agreement effective immediately upon written notice to the other one, if the other one: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has 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.

12.2.     Upon expiration or termination of the Agreement, except as expressly otherwise provided herein:

a)            rights and licenses granted by Us to you hereunder will immediately terminate,

b)            We may destroy and permanently erase all Your Data and Confidential Information, provided that, for clarity, this obligation does not apply to any Resultant Data,

c)            You shall immediately cease all use of the Services and within 15 days, or at Our written request permanently erase Our Confidential Information from all Your Systems, and certify to Us in writing that you have complied with this obligation,

d)            We may disable your and Authorized User access to the Services,

e)            if you terminate the Agreement pursuant to Section 12.1 (b), you will be relieved of the 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 the expiration of the current subscription term will become immediately due and payable, and you shall pay such fees, together with all previously accrued but not yet paid fees. If We are unable to charge them automatically to the payment method you last selected, You will pay the amount on receipt of Our invoice therefor.

12.3.     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.

13.         Final provisions

13.1.     Agreement constitutes our sole and entire agreement with respect to its subject matter and supersedes all prior and contemporaneous agreements, with respect to such subject matter. In the event of a conflict between the documents constituting the Agreement, the documents shall apply in the following order: (i) the written and signed body of the Agreement, (ii) these Terms of Service, (iii) remaining documents in order of their appearance in the Terms. If you are a consumer, the Information on Consumer Rights shall apply.

13.2.     Neither of us may assign or otherwise transfer any of its rights or obligations under the Agreement, without the prior written consent of the other party, provided that We may assign the Agreement as a whole without your prior written consent to our affiliate.

13.3.     In no event will We be liable for any failure or delay in performance of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Our reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, cyber-attack (including DDoS), invasion, embargoes, strikes, the passage of the 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. We may terminate the Agreement if a force majeure event continues for a period of 30 days or more.

13.4.     We may revise and update the Terms from time to time at Our sole discretion. All changes are effective on the indicated date and apply to all access to and use of the Service thereafter. Your continued use of the Service following its term of effectiveness means that you accept and agree to the changes. You are expected to check the Terms from time to time so you are aware of any changes, as they are binding on you.

13.5.     The requirement of written form is met if the electronic text with a simple electronic signature is delivered to the e-mail address of the other Party, or by other electronic means agreed by the parties.

13.6.     If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, we shall negotiate in good faith to modify the Agreement so as to effect the original intent to the greatest extent possible.

13.7.     Agreement is governed by and construed in accordance with the internal laws of the Czech Republic without giving effect to any choice or conflict of law provision. 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.