General Terms and Conditions

To the Service Contract

1. Introductory Provisions

1.1 These General Terms and Conditions are an integral part of the Contract concluded by the Client with the Provider governing the binding rules and conditions of use of the Provider’s Services and Products. These GTC govern the relationship between the Provider of the Services and Products and the Client.

1.2 For the purposes of these GTC, the definitions set out below shall have the following meanings:

  • GTC – means these General Terms and Conditions;
  • Contract – means the Contract for the provision of Services and Products concluded between the Provider and the Client;
  • Client – means a natural person consumer or entrepreneur and a legal entity concluding a Contract with the Provider;
  • Client Server – means a server or HW equipment that is not owned, operated or controlled by the Provider;
  • Provider – shall mean Apertia Tech s.r.o. with registered office at Šlikova 549/4; Prague 6 – Břevnov; Czech Republic
  • Product – means any Service or part thereof supplied by the Provider under the Provider’s specific trade name in accordance with the Provider’s trademark policy. The Client purchases the Product as is. Support and other services are provided separately, i.e. their provision must be agreed between the Client and the Provider separately.
  • Price List – means a document or website that sets out the prices of Services and Products, unless specified in the Contract;
  • Provider’s server – means the server and other HW equipment owned, operated or controlled by the Provider. Provider may use a third party to provide appropriate server resources or capacity;
  • Service Implementation Specification – means the terms and conditions for the implementation of the Services set out by the Provider and/or individualized by the Client in the Contract. Any implementation of the Services is not guaranteed in the price of the Service or Product unless expressly stated;
  • Service Support Specification – means the terms and conditions of the Service Support set out by the Provider and/or individualized by the Client in the Contract. Any Service support is not guaranteed in the price of the Service or Product unless expressly stated;
  • Service – means a specific Service provided by the Provider to the Client under the Contract, which may include maintenance of the Service, support of the Service and other services to the extent agreed in the Contract;
  • Trial version of the Service – means a trial version of the Service which is made available to the Client free of charge and on a limited basis;
  • Administrator – means the person authorized by the Client to administer his User Account;
  • User – means a natural person working for the Client (as an employee, partner, managing director, person cooperating with the Client on a long-term basis under a legal services agreement) for whom the Client establishes a User Account;
  • User Account – means a user account with a unique access code and password;
  • Data Security System – means a document describing methods for securing data stored in the Service application;
  • Parties – means the Client and the Provider together;

 

2. Method of accepting the GTC
2.1 The Service is provided to the Client after the conclusion of the Agreement. These GTC are an integral part of the Contract.

2.2 The Contract is concluded on the date of signing by both parties. In case of conclusion of the Contract via the web interface, the moment of conclusion of the Contract is the payment of the price of the Service (in case of payment via wireless transmission, the moment when the amount corresponding to the price of the Service is credited to the Provider’s bank account) in the amount specified for the first billing period.

3. Provision of the Service

3.1 The Provider shall provide the Paid Service at the Internet address specified in the Product Specification and its subdomains or at the Client Server in accordance with the Agreement and the technical specifications set out in the Product Specification.

3.2 The scope of the Services is defined in the Product Specification, which is an annex to the Contract. The Product Specification defines in detail the individual sub-Services in terms of content, price and the method of their activation.

4. Trial version of the Service

4.1 Prior to the conclusion of the Agreement, the Provider may allow the Client, via the web domain, to trial the Service in Trial Version mode, within the scope defined by the Provider.

4.2 By completing the order form on the website referred to in the Product Specification, the Client accepts the terms and conditions of provision of the Trial Version of the Service, which are governed by Articles 4, 7, 9, 11, 12, 14(6), 15, 16 and 17 of these GTC.

4.3 The Trial version of the Service is provided to the Client for the period specified in the Product Specification, unless otherwise specified by the Provider.

4.4 The Client is entitled to save data when using the Trial version of the Service, but only for the purpose of verifying the functionality of the system. The Client acknowledges that the Provider is not responsible for the availability and preservation of data stored by the Client while using the Trial version of the Service.

4.5 Before the expiration of the Trial version of the Service, the Provider will allow the Client to switch to the paid version of the Service and will provide the Client with non-binding payment details. Payment of the price will activate the Service to the agreed extent and the data stored by the Client in the Trial version of the Service will be transferred to the paid version of the Service. If the Client does not use the option to switch to the paid version of the Service, the provision of the Trial version of the Service will end upon expiry of the period for which it was provided to the Client.

4.6 The Client hereby acknowledges that the data stored by the Client in the Trial version of the Service will be irretrievably deleted after the expiry of the period for which the Trial version of the Service was provided. The Client will be informed of the impending termination of the Trial version of the Service and the deletion of the data after the termination of the Trial version of the Service by email or via the Trial version of the Service portal.

5. Duration of the Service

5.1 The Agreement shall specify whether it has been concluded for a fixed or indefinite period. The Contract is for (i) a fixed term for Services provided via the Web Interface and (ii) an indefinite term for Services provided via the Client Server.

6. Price

6.1 The Client is obliged to pay the price for the use of the Service on the basis of the delivered tax documents issued by the Provider. Invoices (tax documents) will be issued in electronic form. The prices for the Services are based on the Offer or Price List, unless otherwise provided in the Agreement.

6.2 The debit/credit card and/or other online means of payment used by the Client to log in to use the Service (i) provided through the web interface and (ii) provided on a monthly subscription basis will automatically be used 30 days from the date of logging in to use the Service to pay the price for use of the Service. If the Client wishes to cancel the automatic payment of the price for the use of the Service, the Client must cancel the automatic subscription three days before the automatic renewal of the use of the Service. The Provider recommends checking with the prepaid card company or bank to see if recurring payment for the Service is possible.

6.3 The Client may change his/her subscription online by simply logging into the Client Area. To avoid automatic recurring payment for the next period of use of the Service, the Client must cancel his/her subscription at least three days before the Service is renewed. If the Client cancels his/her subscription no later than three days prior to the recurring renewal of the Service, his/her subscription will expire at the end of the relevant billing period.

6.4 An order for any Service may be cancelled without any additional payment before the Client’s payment is credited to the Provider’s account. For downloadable Products, the Provider shall not refund any payments made by the Client after the download channel has been made available and an attempted download has been made. Cancellation of an order after receipt of the Client’s payment is only possible by agreement with the Provider if the ordered Service has not been used or any download attempt has not been made.

7. Licensing Arrangements

7.1 The system is developed under the GPL v3 license

7.2 all modules are also under the GPL v3 license

https://www.gnu.org/licenses/gpl-3.0.html

8. Payment terms

8.1 The billing period for a Contract concluded for a fixed term is the period (number of months) for which the Contract was concluded. The Provider shall issue invoices with a due date of 14 calendar days for Services provided via the web interface or email, unless otherwise specified in the Offer.

8.2 In the event that the Contract will be concluded for a certain period of time, the Provider will send the Client non-binding payment details for the payment of the price for the Services for the same period of time before the expiry of that certain period. In the event that the price for the Service is paid in accordance with the payment details, the period of provision of the Service will be automatically extended.

8.3 In the event of delay in payment of the price of the Service, the Provider shall be entitled to charge interest on late payment at the rate of 0.5% per day of delay. If the Client is in default with any payment, the Provider is entitled to suspend or limit the provision of the Service until the debt is paid in full. During the period of suspension or limitation of the provision of the Service, the Client shall pay the price in accordance with the tax documents provided. Repeated delays in payment on the part of the Client shall be considered a material breach of the Contract.

9. Rights and obligations of the Provider

9.1 The Provider is entitled to make any changes to the Service or its scope. In such case, the Provider shall inform the Client via the web interface for the Service provided. The Client is entitled to terminate the Contract in case of unilateral changes to these GTC, which the Client refuses, if agreed in the Contract.

9.2 The Provider undertakes to take all steps within its technical capabilities to ensure the functionality and availability of the Service, provided that the Client meets the basic system requirements for the Services as specified in the Product Specification or on the relevant web portal. If a non-standard situation arises related to the functionality of the Service, the Provider shall proceed in particular in accordance with the Agreement.

9.3 If the Client discovers any problem related to the speed of the Service or its availability, the Client shall immediately notify the Provider of this event via e-mail specified in the Product Specification or by telephone via available contacts to expedite the problem resolution process. The Client acknowledges that there may be events beyond the Provider’s control that may affect the functionality or availability of the Service to the User (e.g. Internet connection failure on the Client’s side, natural disaster, DOS or DNS attacks on the Provider’s hardware, etc.). The Provider shall not be liable for damages incurred by the Client in connection with such events.

9.4 The Client acknowledges and agrees that the Provider may temporarily cease to provide the Service for serious reasons, in particular in cases such as prevention of cyber-attacks, if necessary, or in the event of a serious failure of the Service that must be resolved as a necessary shutdown. A notice informing of the interruption of the Service must be sent to the Client as soon as possible. The Provider shall establish appropriate operational and security measures to minimize any disruption or limitation or complete unavailability of the Service.

9.5 The Provider undertakes that it is not entitled to disclose the contents of the User Data to any third party. The Provider further agrees that it has no right to edit, censor or monitor any User Content.

9.6 The Parties agree that the Provider shall not acquire ownership of the Client’s data. The Client is solely responsible for the content of the data stored on the Client’s server or on the Provider’s server.

9.7 For the proper provision of the Service, the collection, storage and processing of the following data is necessary: released version, store identifier, URL instance, list of plugins and number of active users, which the Provider uses to identify the Client, verify the authorization to use the Service and protect the Provider’s rights. By accepting these Terms, you acknowledge and agree that the Provider is entitled to check, by its own means, whether you are using the Service in accordance with the Service Agreement, and that the above data will be transmitted in communications between the Client and the Provider’s computer systems.

10. Rights and obligations of the Client

10.1 The Client shall not use the Service in violation of generally binding legal regulations.

10.2 In order to gain access to the Service, the Provider may request certain identification data and other information from the Client. The Client shall provide true, accurate and up-to-date information.

10.3 At the Provider’s request, the Client shall provide the necessary assistance in troubleshooting or making adjustments.

10.4. in case the Client wants some new functionality to the system and we program or set it up, the Client shall pay the Provider for the work done, according to the pre-agreed terms

10.5 The Client is obliged to keep the access data secret, not to disclose them to anyone or otherwise allow access to them, or otherwise not to allow a third party access to his User Account. He/she shall furthermore secure his/her technical devices to the extent reasonably required so as to minimise the risk of misuse of the Client’s User Account access data.

10.6 If the Client breaches the obligations imposed on it in this paragraph, the Provider shall not be liable for any damage incurred by the Client and the Client shall be fully liable for any damage incurred by the Provider or third parties. Furthermore, breach of these obligations shall give the Provider the right to withdraw from this Agreement. If the Client discovers that the Service may be made available to third parties due to a leak of information about access to the Service, the Client shall immediately report this fact to the Provider by e-mail.

11. Client account administration

11.1 Each Client may choose one or more User Accounts that carry Administrator rights. The Administrator may perform the following operations:

– Add, edit and remove User Accounts and set access rights to these accounts (e.g. access to reports, file creation, etc.),

– access to all Client data regardless of the access settings of individual Users,

– select another User Account to become an Administrator.

11.2 The Client shall be fully responsible for the use of the Service by Users, the activities performed by such Users and all data uploaded to the Client’s Account. The Client shall ensure that all its Users comply with the provisions of these GTC.

12. Prohibited Conduct

12.1 The Client shall not upload, post or otherwise store content on the Service portal that may contain software virus or other files and programs that may destroy, damage or limit the functionality of the Provider’s or other Clients’ equipment. In addition, Client shall not upload content to the Service that is illegal to possess or distribute, content that infringes on the copyrights of a third party or is part of a criminal activity, spamming through the Service, or attempting to gain access to another Client’s User Account or Provider’s servers. Violation of these obligations shall be deemed to be material and shall give the Provider the right to terminate the Agreement and the right to require the Client to pay a contractual penalty of EUR 10 000,- for each violation and, if applicable, damages.

13. Termination of the Contract

13.1 The contractual relationship shall terminate upon withdrawal from the Contract, expiry of the agreed term of the Contract, dissolution of the legal entity (Provider or Client) with liquidation, termination of the Contract or by agreement between the Parties.

13.2 If the Contract is concluded for an indefinite period, the Client is entitled to terminate the Contract at any time without giving any reason. The notice period shall be one month and shall commence on the first day of the calendar month following delivery of the notice to the Provider.

13.3 The Provider is entitled to terminate the Agreement at any time without giving any reason. The notice period shall be three months and shall commence on the first day of the calendar month following the delivery of the notice to the Client.

13.4 The Client is entitled to terminate the Contract in the cases specified in Article 9.1 of these GTC.

13.5 If the Client materially or repeatedly breaches its obligations under these GTC or the Contract and fails to remedy such material or repeated breach within 14 days from the date of receipt of a notice to that effect by registered letter or from the date of sending an e-mail, the Provider is entitled to withdraw from the Contract. The withdrawal shall be effective on the day following the date of delivery of the notice of withdrawal to the Client.

13.6 If the Client has breached its obligations under these GTC or the Agreement in a particularly serious manner, the Provider is entitled to withdraw from the Agreement and terminate the provision of the Service with immediate effect upon discovery of such breach.

14. Limitation of liability for the Service

14.1 The Parties agree that the Provider’s total liability for any claim made under the legal relationship arising out of the Contract and the estimated amount of damages shall not exceed and shall be limited to an amount equal to the maximum amount paid for the provision of the Service in the preceding calendar year. If it is not possible to determine the maximum damages pursuant to the preceding sentence, the maximum damages shall be limited to the current quarterly fee for the specific subscribed Services provided through the Web Interface.

14.2 The Provider shall not be liable for indirect damages resulting from the provision of the Services, such as loss of profits, loss of revenue, loss of data, financial or any indirect, special or consequential damages. In cases of Force Majeure, the parties shall not be liable for any breach of their duties and obligations under this Agreement and any failure (total or partial) or delay in performing the obligations imposed by this Agreement shall not be deemed a breach of the Agreement. Force Majeure shall mean any circumstance where liability is excluded under Czech law, including but not limited to a natural disaster, war, a change in political situation that precludes or improperly prevents the exercise of rights and obligations under this Contract, or any other similar reason, event or fact.

14.3 By entering into the Agreement, the Client acknowledges that, even with the Provider’s best efforts, it is possible that the Service may be temporarily unavailable due to circumstances beyond the Provider’s control (e.g. failure of the Internet connection). The Client therefore agrees and undertakes that all of its data stored within the Service will be backed up in another geographical location.

14.4 The Client shall use the Service as is. Incompatibility with other software, hardware configuration or partial malfunction shall not entitle the Client to cancel the Order or to a refund.

15. Privacy Policy

15.1 The Client declares that it is aware of its legal obligations as a controller of the personal data of Users and Clients. The manner and processing of the personal data of these subjects within the Service shall be determined by the Client. The Provider shall not be liable for the proper performance of the Client’s legal obligations as a personal data controller.

15.2 All data is collected by the Provider from the Client for the purpose of providing the Service, improving the quality and sending business and marketing notifications only. If the Client is a natural person, the following data is collected: name, surname, billing address, email, telephone number, information about the use of the Service.

15.3 All communications within the Service are SSL encrypted. The Client hereby declares that it considers this method of encryption to be sufficiently secure.

15.4 The Provider undertakes not to provide any information specified by the Client when registering its User Account to a third party unless the Client expressly agrees.

15.5 The Client’s data is stored in the Provider’s electronic systems for the duration of the contractual relationship. After its termination, the Provider stores the data necessary only for compliance with the obligations arising from the legislation. The Client agrees that the Provider will use the Client’s name and logo in the Provider’s client list for and during the term of the Contract, unless otherwise agreed with the Client based on the Client’s instructions or its policies and rules.

16. Final Provisions

16.1 The Parties undertake to maintain the confidentiality of all information obtained by them during the course of the contractual relationship under the Contract.

16.2 The Client’s rights under the Contract and these GTC may not be assigned without the prior written consent of the Provider.

16.3 For the avoidance of any doubt, the parties expressly confirm that they are entrepreneurs and that they are entering into the Contract in the course of their business.

16.4 If any provision of the Contract or these GTC is invalid, ineffective or unenforceable, such fact shall not affect the validity, enforceability or effectiveness of the remaining provisions of the Contract or these GTC. In such event, the parties shall use their best efforts to enter into an amendment to the Contract whereby the invalid, unenforceable or ineffective provision will be replaced by a new provision consistent with the originally intended purpose.

16.5 In the event of any conflict between the provisions of the Proposal, the Product Specification, the Service Implementation Specification, the Service Support Specification and the GTC, the following order of precedence of documents shall apply:

(i) Offer,

(ii) the Service Implementation Specification,

(iii) Service Support Specification,

(iv) Product Specification 

(v) GTC,

(vi) published information.

16.6 These GTC are governed by the laws of the Czech Republic, a member of the European Union. Any dispute that arises in connection with the performance or interpretation of the Contract or that cannot be resolved amicably by the Parties shall be finally settled by a Czech arbitration body, the Arbitration Court of the Czech Chamber of Commerce and the Czech Chamber of Agriculture, by three arbitrators appointed in accordance with the rules of such arbitration court. Each party shall appoint one arbitrator. The two arbitrators shall agree on a third arbitrator within 30 days. In the event that the two arbitrators fail to reach agreement on the third arbitrator within the aforementioned time limit, the chairman of the arbitral tribunal shall be appointed. The arbitral award shall be final and binding on both parties. The parties irrevocably undertake not to challenge the enforcement of the arbitral award in any jurisdiction.

These T&C shall take effect on 19.11.2022

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