1. General Provisions
ACOMWARE s.r.o., seated in Prague 4, Budějovická 778/3, Post Code 140 00, a company entered in the Commercial Register at the Municipal Court in Prague, section C, file 92586, Company Registration No.: 250 47 965 (hereinafter the “ Supplier"), is primarily an advisory company and advertising agency operating mainly in the area of Internet marketing and e-commerce.
The Client is a natural person or a legal entity placing a binding order for marketing and/or advertising and/or e-mailing services and/or data services and/or other services provided by the Supplier on the basis of an order or contract for themselves or for a third party. Providing the Supplier's services to a third party other than the Client is subject to the Supplier's prior consent.
Marketing services are a specific form of services provided on the basis of an individual agreement with the Client, and are specified in individual items of the agreement. They include especially the management of PPC or RTB campaigns, search engine optimization, link building, content management, and community management on social media, administration of XML feed for product search engines, e-mailing services, data and web analytics, graphics or other production services etc.
Advertising services (campaigns) include services of an advertising nature agreed between the Client and Supplier. The Supplier usually arranges the release of an agreed advertising format (campaign) of particular parameters on servers (Internet presentation where the advertising format will be published) specified in an order or other media, eg for the period of time defined in an order, in the form of a budget or charging fixed amounts in the advertising system etc.
Data services also include services connected with data processing agreed between the Client and Supplier. They include both the Client's data or Processor's data, or third-party data, namely all reporting, analytical, research or any other data services. This term also refers to services connected with data collection and storage, or data warehouse management.
These Terms and Conditions are intended to regulate the conditions of orders and the supply of services between the Supplier and the Client, ie in particular, to regulate general agreements, service orders, and the formation, amendment and termination of partial contracts based on which services will be provided, as well as rights, obligations and claims of contracting parties resulting from those contracts, and all other matters connected therewith.
These Terms and Conditions also apply to the use of a software solution or other third-party systems provided by the Supplier either upon its own initiative or upon the Client´s request – eg the Acoustic system, Maileon software solution, Exponea software solution, systems of Google, Inc. (eg Google Ads, Google Marketing Platform etc.), SEZNAM.CZ, as (eg Sklik) and others. The Terms and Conditions also apply to cases when the Supplier carries out its activities in systems provided directly by the Client.
The Client acknowledges that the aforementioned software solutions and other systems mentioned above are products of a third party other than the Supplier. The Service Provider is not responsible for any failures of such third-party systems and/or limitation of access to such systems caused by the third party or any other suppliers, and is not liable for them, unless stated otherwise explicitly in this Contract.
The basic rules regulating the use of a third-party software solution are specified in Article 4 of these Terms and Conditions. Also, the use of a third-party software solution is explicitly governed by the latest version of the rules, technical and operating documents determined by the relevant third party. The latest version of those documents is available on the Internet site of the relevant provider or, for selected services, under the links below. The Client acknowledges that the use of a third-party software solution or other systems may be conditioned by a requirement to enter into a binding agreement with the software provider regulating their mutual interaction. The Supplier will inform them should this be the case.
Terms and conditions of individually selected solutions:
Acoustic (https://acoustic.com/terms-conditions/)
Exponea (https://exponea.com/legal/terms-of-service/, https://exponea.com/legal/privacy-policy/)
Maileon (https://www.maileon.de/mehr/agb/, https://www.maileon.de/datenschutz/).
Glass (https://napoveda.sklik.cz/pravidla/smluvni-podminky-pro-inzerenty/)
Google Ads (https://payments.google.com/u/0/paymentsinfofinder)
Google Marketing Platform (https://policies.google.com/terms?hl=en)
2. Order
The services are ordered with a binding effect on the basis of a written order (including an order sent by fax or e-mail, signature via a signature application, eg DocuSign) or upon the settlement of an advance payment invoice (pro forma) issued by the Supplier and payment made by the Client.
An order is binding for the Supplier only upon written acceptance sent to the Client in writing or by e-mail. The Supplier may also accept an order by starting to perform the work based on that order.
All partial orders placed by the Client will be, if possible, numbered in order to avoid duplication.
It has been agreed that by accepting an order the Supplier and Client enter into a contractual relationship, which is governed, in addition to the contract made, also by these Terms and Conditions and the documents referring thereto.
By entering into a contract, sending an order or making a payment based on an advance payment invoice, the Client agrees:
a) to these Terms and Conditions of the Supplier;
b) to the terms and conditions of the provider of the relevant software if a third-party software solution or systems are used;
c) to the terms and conditions of releasing an advertisement in third-party media determined by their operators if an advertisement is ordered in the third-party media.
The Client undertakes to submit instructions to the Supplier, concerning the processing of personal data provided by them, in an adequate manner determined by the Supplier.
3. Financial Terms
3.1 Price
The price has been agreed by the Client and Supplier. The prices are always agreed excl. VAT, which is added according to the applicable legal regulations.
3.2 Invoicing and Terms of Payment
The Supplier is entitled to request a deposit on the price or payment in advance (to be paid on the basis of an advance payment invoice). The relevant amount must be credited to the Supplier's account within two (2) business days prior to the agreed date of commencing the relevant services. If the payment is not credited to the Supplier's account duly and in time, the Supplier is not obliged to commence the services.
Invoices containing the elements of a tax document are issued within 15 days after the taxable supplies. If the services are provided continuously for several months or within individual campaigns, the Supplier may issue partial invoices for the corresponding part of the services at the end of each calendar month/campaign.
According to the Supplier's selection stated on invoices, the due date of such invoices is 14 days from the issuance date or 21 days from the date of taxable supplies, unless otherwise agreed in writing by the Client and the Supplier. In case of a delay in the payment of invoices, the Supplier is entitled to charge late payment interest amounting to 0.15% of the outstanding amount for each commenced day of such default. The payment of the late payment interest does not affect the Supplier's entitlement to compensation for damage or any other loss, if applicable. The obligation to pay the late payment interest will survive the termination of the contract.
Properly paid services refer to services that have been paid for in the amount stated in an order/tax document and under the payment identifier stated therein. Payment refers to the crediting of an amount to the Supplier's bank account.
The Supplier may choose not to accept any incorrect, partial or collective payments. Such payments may be refunded to the account, which they were sent from to the Supplier's account, and reduced by any bank charges incurred by the Supplier.
The Client is not entitled to assign or place its claims against the Supplier as security without the prior written consent of the Supplier.
3.3 Terms of Cancellation
If the Client wishes to cancel a confirmed order, it is obliged to pay a cancellation fee to the Supplier, amounting to the agreed price incl. VAT based on the order, unless otherwise agreed by the parties.
3.4 Special Condition in Case of Outstanding Invoices
If the Client is in default of payment of any invoice (including invoices issued according to another contract made with the Client), the Supplier is entitled to discontinue the provision of services under this contract without having to inform the Client, and to link the other commencement of work to the payment of a reasonable advance by the Client. The discontinuance of these services will not affect the Supplier's right to receive the fixed agreed remuneration also for the time when the services are not provided. The Supplier is entitled to suspend any campaign or advertising message of the Client who is in default of payment of any payable to the Supplier, and such a campaign or advertising message will be deemed terminated for reasons on the part of the Client.
The Supplier is entitled to authorize a third person to enforce its claims against the Supplier. The Supplier is entitled to submit the information about individual business cases and about the Client to third persons in cases specified by legal regulations, in separately agreed cases, in protecting the Supplier's rights or in enforcing the Supplier's claims, in assigning claims or in any other way of handling such claims to its legal, accounting, tax and similar advisors, persons constituting a concern with the Supplier, and to a person providing the Supplier with insurance of a risk of non-payment of claims or a person collecting debts for the Supplier.
4. Conditions of Providing Services
4.1 The Contracting Parties may agree to change and distribute the agreed time allocated to individual services and the scope of activities carried out by the Supplier in connection with the provision of services under this contract – in that case, the Contracting Parties can approve the scope of activities connected with the performance of this contract for each month.
Upon agreement of the Contracting Parties, the time agreed for the provision of services under this Contract can also be used to support other online shops/projects of the Client.
If the Contracting Parties do not use their right pursuant to the provisions of this Article hereof, the form and time of providing services under this contract will be decided entirely by the Supplier, who will determine the manner and time schedule of provided services unilaterally.
4.2 The Client undertakes to provide the Supplier, upon request of the latter, with timely assistance and any and all information, as well as to deliver documents to the Supplier, which are inevitable for due and timely performance of obligations. If the Client is in default of meeting its obligations (providing assistance, information or source materials), the Supplier cannot be in default of meeting its obligations under this Contract, the Supplier being entitled to receive full remuneration.
The Client bears exclusive responsibility for the truth of data stated in the source materials submitted or obtained by it.
4.3 If the Supplier distributes an advertisement for the Client, the Client is fully responsible for the content of such an advertisement. The Client undertakes that the advertisement submitted to the Supplier for distribution will not contravene legal regulations, good morals, fair dealing principles and fair business principles, and that the distribution of the advertisement will not affect the rights and legitimate interests of third persons unlawfully (including , but not limited to, the right to protect the personal rights of individuals, the right to protect the good reputation of legal entities, copyrights, rights associated with the copyright, and the right to a trademark), and will not violate generally binding legal regulations, especially Act No. 40/1995 Coll., the Advertising Control Act, as amended, Act No. 132/2010 Coll., the Requested Audio-Visual Media Services Act, and/or Act No. 231/2001 Coll., the Radio and TV Broadcasting Act, as amended, and that all financial claims resulting from the use of a copyrighted work and/or the images of individuals used in the advertisement and from the rights associated with the copyright were ( will be) satisfied by the Client as at the date of submission of materials to be used as the source for the advertisement. The Client undertakes that if any damage or harm has been caused to the Supplier or distributor of the advertisement and/or operator of the relevant medium as a result of the distribution of the advertisement, the Client will compensate for such damage (harm) in full . Damage also refers to the costs of court or arbitration proceedings, including the costs of legal representation in those cases.
The Client also explicitly undertakes not to submit presentations of games of chance operated without a basic license pursuant to Act No. 186/2016 Coll., the Gaming Act, or alternative regulations, for distribution. The Client also explicitly undertakes to ensure compliance with all statutory conditions and duties regarding the presentation of human medicines, supplements, foods, especially foods for special nutrition and follow-up formula, both pursuant to the Czech legislation (eg Act No. 40/1995 Coll., the Advertising Control Act), and EU regulations (especially Regulation (EU) 1924/2006, on nutrition and health claims made on foods).
If the Client intends to distribute a certain volume of advertising (or eg the number of sent e-mails), a bulk discount can be provided to it on the basis of that volume of advertising, even as an advance discount. If the Client does not order the expected advertising volume, if the Client does not make use of the agreed volume, or if an order is not completed for reasons not on the part of the Supplier, or, also, if the Client is in default of payment of an invoice for such a service (or any part thereof) for more than 15 days, the Supplier may decide unilaterally that the Client´s right to get the discount extinguishes in full or to the extent determined by the Supplier.
4.4 The Supplier reserves the right to refuse to distribute advertisements, to provide services concerning the Client´s e-mails or any other performance:
a) if their content or extent does not correspond to a contract or any other agreement made or to these Terms and Conditions or other conditions applied upon agreement of the parties;
b) in case of a breach of the ethical principles of the Supplier or publishers or operators of other systems used for the performance for the Client, and/or the Code of Advertising Practice of the Advertising Council (Rada pro reklamu), or the terms and conditions of providers of software solutions or other systems used for the performance for the Client;
c) due to a legally defective content of advertising, e-mails, SMS and other content, ie if the content or method of distribution will contravene legal regulations, good morals, fair business principles and fair dealing principles, or decisions of state authorities, or the ethical rules of the Advertising Council (available at rpr.cz);
d) if the format, content or execution of the advertising or e-mails could make the impression in addressees or readers and/or listeners or viewers that it is part of the editorial content of the relevant medium or message of the Supplier or operator of the relevant medium or any other person;
e) containing messages, advertising or commercial messages of third persons, except for the case when the Client is an advertising or media agency and the advertising contains messages, advertising or commercial messages of its customer approved by the Supplier;
f) which will encroach upon the rights and legitimate interests of the Supplier, which will harm or could harm the reputation of the Supplier, its employees, members or persons constituting a concern with the Supplier;
g) if it is advertising of a competitor of the Supplier or operator of a software solution or operators of other similar systems used by the Supplier for the performance for the Client;
h) if the Supplier has reasonable doubts about whether there is a reason for refusal pursuant to subparagraphs a) to e);
i) if it is advertising of a competitor of the operator of one of the media, where the advertising should be placed;
j) if the Client refuses to sign a special promise to indemnify, as the signing thereof will be requested by the Supplier in justified cases;
k) containing anonymous advertising concerning elections during an election campaign according to the election legislation, or content that does not meet other requirements of the election legislation.
In the cases specified above, the Supplier is entitled to refuse to provide services in whole or in part.
The Supplier will announce its decision to refuse to the Client without undue delay. The Client is then obliged to submit alternative source materials free of any defects to the Supplier without undue delay. In case of repeated refusal for reasons stated in this paragraph, the Supplier is entitled to withdraw from the contract.
If the Client orders or delivers an advertisement in a form that does not correspond to the parameters and/or format of the advertising space or technical capacities of the relevant medium, the Supplier is entitled to modify the advertisement in a regular way, without being obliged to inform the Client.
4.5 The Client is responsible for the legality of delivery of messages by e-mail, SMS or any other form of communication, for which the Supplier's services are used. The Client states it has obtained all consents or there are other legal reasons for delivery of advertising messages or using the advertising targeting to all clients and/or to all users, whose e-mail addresses, telephone numbers or physical addresses will be provided by the Client to the Supplier as source materials for the performance of the contract complying with Czech law as well as the laws of the state of residence of the addressee, or the state where such messages will be sent to. Regarding Czech law, messages must comply primarily with Act No. 480/2004 Coll., concerning some information company services, Act No. 110/2019 Coll., the Personal Data Protection Act, Regulation (EU) 2016/679, and Act No. 127/2005 Coll., the Electronic Communications Act. The same applies to the use of cookies and other network identifiers.
4.6 The Supplier is not responsible for a budget overdraft, and the Client undertakes to pay the actual costs, including the costs exceeding the Order.
4.7 The Client agrees that the Supplier processes messages submitted to it for distribution, in technical terms and to a reasonable extent, especially due to meeting the technical requirements of connected networks, adjustment of those messages to restrictions given by third-party systems, adjustment thereof to technologies use and the conditions of suppliers of individual solutions.
4.8 The Client acknowledges and undertakes, especially in submitting source documents or giving instructions, and in using computer or any other systems, to comply with the terms and conditions and the rules of cooperation with third parties, whom the contracting parties encounter in performing an order/ contract (especially the terms and conditions of operators of Google, Seznam.cz, Facebook servers, Adform, Google Ads, Sklik, Acoustic, Exponea, Maileon advertising systems, etc.). At the same time, the Client acknowledges that the Supplier is obliged to follow the terms and conditions and will act upon them in performing the contract with the Client.
4.9 If any used software or provided tool contains a third-party solution licensed by that third party, the terms and conditions determined by that third party must be followed too. If the Client is granted a license or sub-license to software and other copyrighted items (hereinafter “the software”), the Client acknowledges that such a (sub-)license is granted only for the purpose of the performance of a contract made, as a non-exclusive, for the duration of the contract at most, and exclusively for the territory of the Czech Republic. The Client is not entitled to enable any third party to use the software in the form of sub-licences, transfer of the license, lease or any other access to the software in order to use it without the Supplier's prior written consent.
The Client undertakes to enable the Supplier or holders of the copyright to the software, upon their request, to check whether the Client uses the software in accordance with the agreed rules. The Client agrees that the software solution does not have to be available in an unlimited manner.
The Supplier or provider of a third-party software solution is entitled to restrict access to the system at regular intervals or as necessary in order to carry out the maintenance thereof, repair errors or upgrade the software and/or hardware. For other third-party systems used by the Supplier or the Supplier's own systems, the rules apply by analogy.
The Client agrees that third parties as suppliers of software solutions and systems exclude any liability for any damage caused by the use thereof. The same applies to any related liability of the Supplier, including its liability for any damage connected with the use of any software solution and system (of the third party or the Supplier) by the Client.
4.10 The Client undertakes not to use a third-party software solution or system or any other program or tool provided or obtained by the Supplier contrary to the law or good morals, and for the use or publishing or distribution of information which: (i) is illegal, (ii) is obscene, sexually explicit, pornographic, (iii) is discriminatory, (iv) causes harm to minorities in any way, (v) violates the third-party copyright, (vi) contains materials hazardous for the national or public security of any country, (vii) supports terrorism or any other defective or illegal conduct, (viii) contains a fake identity in order to deceive others, or manipulates identifiers in order to conceal the origin of transmission or information, (ix) contains any defective software, including computer viruses, worms, Trojan horses, spyware, adware etc. The Client also undertakes not to use a third-party software solution or system or any other program or tool for any unauthorized collection of information about other persons, incl. phishing, unlawful obtaining of access to computer networks and devices etc. Stricter limitations agreed in these Terms and Conditions or a contract will not be affected thereby.
4.11 The Client explicitly undertakes not to use the software in a manner that breaches software export restrictions valid on the territory of the Czech Republic, the United Kingdom or the USA. The Client undertakes to adhere to generally applicable corporate governance principles, and undertakes not to carry out any activity in connection with a contract made that could be considered corrupt practices.
4.12 The Client will keep backup copies of any content provided for use within a software solution or system of a third party or the Supplier. The Client acknowledges that messages and content will always be available via the third-party system for the time determined by its operator, however, for no longer than the duration of the contractual relationship between the Client and Supplier, which is directly connected with the use of the relevant software solution. Messages and content may be archived and/or deleted from the third-party system at any time after the expiration of that time; The Client acknowledges that the company providing the third-party software archives and/or destroys copies of messages, provided data and content immediately after the completion of the relevant order and/or contract creating the Client's right to use the relevant system.
4.13 A password or any other login data generated and allocated to the Client for the use of a third-party software solution or any other system serves only for its internal needs in accordance with a contract, and must be kept by the Client in secret. Neither the Supplier nor any supplier of software and services is responsible for any loss or misuse of those data. The Client is obliged to keep a list of employees who have access to third-party system login data. The Client acknowledges that if the Client provides third-party system login data to a third person, its access to the software solution may be suspended immediately.
4.14 The Client undertakes not to copy or store a third-party system or any part thereof in its computer equipment, and not to use it for a purpose other than for proper use of the services for the intended purposes, especially not to use it for the development of competing products. The Client acknowledges that the conclusion of a relevant contract does not entitle it to use any logo or trademark of the relevant third parties.
4.15 The Client acknowledges that any and all warranties and representations made under these Terms and Conditions are made by the Supplier solely for itself, and that no warranty or representation contained herein may be interpreted to the detriment of a third-party software solution provider.
4.16. The Supplier is entitled to withdraw from this agreement with immediate effect if the Client has breached any of its obligations according to this Article. The right of withdrawal or termination resulting from the law is not affected thereby.
4.17 If the Client breaches the obligations/warranties and representations contained in this Article, the Client undertakes to compensate the Supplier or operators of the relevant systems used for providing services to the Client for any damage and loss incurred.
5. Complaints
5.1 Without affecting the special provisions concerning the limitation of liability, in case of a breach on the part of the Supplier, the Client is, within a complaint procedure, entitled to request a reasonable compensation either in the form of an alternative performance or a reasonable discount . The Client is entitled to choose between the aforementioned options only in the case that it informs the Supplier on the selected option in a written notice of defects sent in time. In that case, the Client is not entitled to change the selected option without the Supplier's consent.
5.2 The Client must send a complaint only in writing, by registered letter sent to the address of the Supplier's registered office. Complaints sent by e-mail, fax, or by phone will be deemed properly asserted only in the case that the Supplier acknowledges the acceptance thereof.
5.3 The period of time for sending a complaint is 10 calendar days after the date when the Client detected or could have detected a fault, however not later than within 10 days after the delivery of a report or invoice by the Supplier.
The Supplier reserves the period of time of 30 calendar days to decide a complaint. In a complaint, the Client is obliged to specify the services under complaint properly and sufficiently. The Supplier is entitled to dismiss vague complaints as groundless. A discount will be applied in the form of an amended tax document. The maturity is thus limited only to the proportional part of the performance, which is not subject to the justified complaint.
5.4. The Client is obliged to raise any objections to issued invoices – tax documents, which would result in the reduction of the Supplier's claim against the Client, within 10 calendar days after the delivery of the relevant invoice, in writing to the registered address of the Supplier. The Client is obliged to prove that the time-limit has been observed, otherwise such an objection would be deemed delayed.
6. Provisions Concerning the Personal Data Protection in Providing the Supplier's Services
Both Contracting Parties undertake to company with the provisions of the personal data protection regulations (especially Regulation (EU) 2016/679 (hereinafter the “Regulation”) etc.).
Based on this contract, the Supplier, as a processor, may process, for the Client, the personal data of:
a) customers or other recipients of the Client's marketing messages;
b) addressees of the Client's advertising messages;
c) users of social networks interacting with the Client's products or accounts
(hereinafter “customers”).
The duration of processing, the character and purpose of processing are given by the contract made. The scope of processing includes the personal data of customers, which the Client provides to the Supplier or which the Supplier processes in performing its obligations under this contract or upon the Client's initiative.
The Client will be fully responsible for the determination of the purpose of processing, for informing a data subject about processing, for obtaining the legitimate legal reasons for processing, for the accuracy of the provided data and for the performance of other duties of a controller according to the Regulation and other applicable legal regulations. The Supplier is entitled to request the disclosure of such data. The Client is also responsible for processing by persons other than the Supplier and sub-processors appointed by it, and for processing done in systems, the use of which was requested by the Client.
The Supplier will usually process the following personal data of the Client's customers for the Client: their name and surname, address including e-mail address, information about the customer's transactions with respect to the Client, including, if relevant, any purchased goods and the price, information about the customer´s conduct on the Client´s www site or Client´s accounts on social networks, the content of messages and other marketing communication sent to customers, customer´s activities with respect to such messages , information collected from the Client's tracking codes located on its www site, etc.
The Supplier will process the personal data only on the basis of documented instructions of the Client, which the Client undertakes to submit to the Supplier in the manner determined by the Supplier, including transmission of the personal data to a third country (see below) or an international organization, unless such processing is required by the law of the European Union or the Czech Republic. In that case, the Supplier will inform the Client about this legal requirement prior to processing, unless the legislation prohibits such informing for important public interest reasons. The Supplier hereby informs the Client that it will process the data to the inevitable extent also in order to meet its obligations pursuant to Regulation and Act No. 110/2019 Coll., Act No. 480/2004 Coll., accounting legislation (especially pursuant to Act No. 563/1991 Coll., the Accounting Act, and regulations implementing it), tax legislation (especially pursuant to Act No. 586/1992 Coll., the Income Tax Act , and Act No. 235/2004 Coll., the Value Added Tax Act, and regulations implementing them).
In connection with the personal data processing for the Client, the Supplier undertakes:
a) not to engage any other processor in the processing without a prior specific or general written consent of the Client, and to use only those processors, who provide sufficient guarantees of taking appropriate technical and organizational measures in order to ensure that the relevant processing meets the requirements of the personal data protection legislation, and to ensure the protection of data subjects' rights. Unless otherwise agreed in writing, the Client provides the Supplier with a general permission to engage other processors. In case of a general permission, the Supplier will inform the Client, in a suitable manner determined by the Supplier (eg the Supplier´s newsletter, special section of the Supplier´s www site, or a portal for the Supplier´s clients) , about any and all intended changes concerning the engagement of other processors or replacement thereof, providing the Client an opportunity to raise objections to such changes. Those other processors must have the same data protection obligations as those stated in this Contract, on the basis of a contract or any other legal act according to the law of the European Union or the relevant EU member state, especially concerning sufficient guarantees with respect to taking appropriate technical and organizational measures in order to ensure that the processing meets the requirements specified by the Regulation. The Client acknowledges that in the case of suppliers of software solutions and other similar systems, the Supplier will usually have to accept sample terms and conditions drafted by those suppliers. If those other processors do not meet their obligations in the area of data protection, the liability for the performance of obligations by those relevant will remain with the Supplier in full. However, a person involved in processing on the basis of the Client's decision or a contract made with the Client (eg Google Inc. for Google Analytics, operators advertising systems used on the basis of the Client's instructions) will not be considered one of those other processors engaged by the Supplier. The Supplier will not be responsible for any fault on the part of such persons;
b) to process personal data only for the purpose of the performance of a contract with the Client and related purposes (including related protection of the Supplier's rights and documenting the performance provided to the Client and improvement of the Supplier's services);
c) to take into account the character of processing and provide the Client with assistance by means of appropriate technical and organizational measures, if possible, in order to meet the Client's duties based on the personal data protection legislation, and to provide the Client with assistance to the necessary extent and without undue delay in order to satisfy the rights of data subjects, and with assistance before a supervisory authority; to avoid doubts, it has been agreed that the costs of such assistance in excess of ordinary technical measures (eg in handling individual requests of data subjects within the right of access etc.) are not covered by fixed or lump sum payments, but will be charged by the Supplier according to its price list, unless otherwise agreed in writing;
d) to ensure that persons engaged by it for the personal data processing undertake to maintain confidentiality, and that they are subject to the statutory duty of non-disclosure;
e) to report any breach of the personal data protection to the Client without undue delay if the Client has a duty to report such a breach to a supervisory authority and/or customers or if such a breach of protection imposes a significant risk for the rights and legitimate interests of the Client, unless such reporting would contravene the applicable law;
f) to provide the Client, to the reasonable and usual extent, with any and all information required to prove that the duties specified in Article 28 of the Regulation have been met;
g) to enable the Client, upon the Client's written request, to the reasonable and usual extent, to conduct audits, including inspections (hereinafter the "checks"), carried out by the Client or an auditor authorized by the Client, and will contribute to those checks. The Supplier is entitled to ask a reasonable payment for this assistance, which, unless otherwise stated, is determined as CZK 500 excl. VAT per man-hour within the first check in a calendar year, and CZK 1,500 excl. VAT per man-hour within other checks in the calendar year (however, the Supplier is obliged to enable only one check in every 12 months). The Client will also pay to the Supplier all efficiently spent costs related to such a check. Nevertheless, the Supplier is entitled to refuse such other checks, if the Client has no serious reason for conducting them. The aforesaid amount will be increased by the inflation rate (consumer price index increase) announced for the previous calendar year by the Czech Statistical Office, from 1 July of the calendar year following the year, when the contract between the Client and Supplier comes into force and effects. The Client is entitled to authorize only a law office or a person dealing professionally with the protection of personal data (however, other than the Supplier's competitor) to conduct such a check – unless the Client conducts it himself. The person conducting the check (including persons conducting the check for the Client) must be obliged to maintain the confidentiality of information collected within such a check, and must not use the collected data in a way other than for the performance of the Client´s duties as a controller pursuant to the Regulation. The Client is obliged to prove such a fact to the Supplier. Within the check, the Supplier is entitled to disclose information and source materials, the disclosure of which could endanger the rights or encroach upon the rights of third parties (eg providers of relevant licenses and systems, personal data and trade secret processed for other persons etc .) or the rights to protect the know-how, confidential information or trade secrets of the Supplier, only to a general extent or in a manner that does not endanger the aforementioned facts. However, the Supplier is always entitled to refuse to disclose such information and source materials, which it may not be rightfully required to disclose. Audits and checks conducted on the site (on the Supplier's premises) will be conducted only in justified cases, and must be conducted in a manner that minimizes their impact on the Supplier's activities. Details of the check will always be agreed in a special written agreement between the Client and Supplier, which will be made within 15 days after the delivery of the Client's written request for the check to the Supplier.
The Supplier is allowed to process the personal data only for the necessary period of time and undertakes to delete the personal data after the termination of the provision of services connected with the processing, and to also delete any existing copies of such data, unless the law of the European Union or the Czech Republic requires to keep such personal data or unless such data will be kept for a reasonable period of time in order to handle any complaints, protect the rights of the Supplier or third persons or for any other performance of the contract made between the Client and Supplier.
With regard to the condition of the equipment, costs of execution, character, extent, context and purposes of processing, as well as risks to various rights and freedoms of individuals of various levels of probability and seriousness, the Supplier will take appropriate technical and organizational measures in order to ensure the level of security corresponding to the relevant risk, including:
a) the use of passwords to the Supplier's computer systems;
b) the locking of the Supplier's premises, where the personal data are located, unless they are under the supervision of the Supplier's colleague;
c) the camera monitoring at the entrance to the Supplier's premises;
d) pseudonymisation or encryption of personal data wherever appropriate and usual especially with regard to the character of the processed data and acceptable with respect to costs;
e) the ability to ensure continuous confidentiality, integrity, availability and resistance of processing systems and services to the extent and in cases that are common in the market;
f) the ability to restore the availability of personal data and access thereto on a timely basis in case of physical or technical incidents to the extent and in cases that are common in the market;
g) the process of regular testing, assessment and evaluation of the efficiency of the technical and organizational measures taken to ensure safe processing.
The assessment of the appropriate level of security will be based mainly on the risks imposed by processing, especially accidental or illegal destruction, loss, modification, unauthorized disclosure of the personal data submitted, stored or processed in any other way, or unauthorized access thereto, the costs connected with such measures, and an adequate situation in the market. The Client acknowledges that in the case of suppliers of software solutions and other similar systems, the appropriate technical and organizational means are determined by the relevant third person.
The Client undertakes to provide the Supplier with any and all assessments of the impact on the protection of personal data made by it (including any changes thereto) in connection with processing which the Supplier will contribute to, an option (to a reasonable extent) to consult a person authorized by the Client for the personal data protection, if appointed, or a person dealing with the personal data protection in the Client´s company, as well as all the necessary assistance to perform the Supplier´s obligations according to this contract or law. The Client undertakes to inform the Supplier on the commencement of each check by supervisory authorities concerning the processing which the Supplier will contribute to, and to inform it on the course of such a check to a reasonable extent permitted by law.
The Supplier will take measures to ensure that any individual acting under the authorization by the Processor and with access to personal data, process such personal data only in accordance with the Client´s instructions, unless such processing is required by the law of the European Union or a member state.
The Client agrees that, within the systems of the Supplier or its subcontractors, data may also be processed outside the territory of the EU, provided that the conditions and restrictions determined by legal regulations have been met. In particular, the Client agrees that the personal data may be processed in the USA by companies that will undertake to comply with standard contractual clauses. In case of systems involved in processing upon the Client's instruction, the compliance with the rules for transmitting personal data will be ensured by the Client.
7. Final Provisions
7.1 The Contracting Parties undertake not to disclose mutual data and information obtained within the cooperation to any third party (excluding their legal, tax, accounting and similar advisors and persons constituting a concern with the Contracting Parties, provided that those persons will undertake to maintain confidentiality to the same extent as the Contracting Party, and excluding the relevant subcontractors or persons approved by the other Contracting Party). This limitation does not apply to information submitted for the purpose of sending a message to third persons.
A letter, notice or and other document will be deemed delivered to the other Contracting Party if it has been delivered to the relevant Contracting Party to the address, fax number or e-mail address stated in a partial contract or order for that purpose (“ contact details”) or to any other address provably announced by one Contracting Party to the other Contracting Party for the purposes of delivery of written notices or to the address of the registered office of the Contracting Party entered in the public register.
In case of doubts, it has been agreed that the moment of delivery of a document means the hour and minute stated in a confirmation of successful delivery of an e-mail message to the other Contracting Party, or the hour and minute stated in a report on the successful sending of a fax message to the other Contracting Party.
The Contracting Parties undertake to inform the other Contracting Party in writing about any and all changes in contact details or any problems with delivery to the relevant addresses and/or telephone number, sufficiently in advance, if the relevant change or problem has been known to them in advance, or without undue delay after the relevant change has been made or the problem has occurred.
Both Contracting Parties are entitled to present their cooperation in public.
7.2 The Terms and Conditions have been made in Czech and English. In case of any doubts or interpretation problems, the Czech version will prevail.
The Contracting Parties have explicitly agreed that their contractual relationship based on orders, partial contracts, master agreement, its individual annexes, or these Terms and Conditions, its validity and consequence of invalidity, effects, form and other elements, will be governed by the law of the Czech Republic, especially Act No. 89/2012 Coll., the Civil Code, as amended.
The provisions of Section 1799 and Section 1800, Section 1805(2), Section 1913, Section 1950, Section 1952(2) and Section 1995(2) of Act No. 89/2012 Coll. will not be applied.
The Contracting Parties have explicitly agreed that the Supplier is entitled to refuse to perform under a contract also in the case that the Client is in default of the performance of any other obligation against the Supplier (resulting from any other legal cause).
If performance by installments has been agreed and the debtor fails to pay any installment, the Contracting Parties have agreed that the creditor has the right to the entire debt and this right may also be asserted upon the maturity of the next installment.
The Supplier is entitled to set off any of its claims against the Client against the Client's claims against the Supplier, regardless of the fact whether the claims are due or not, and regardless of the currency or legal relationship they resulted from. The parties have explicitly admitted the set-off of claims in various currencies. Set-off is governed by Czech law.
7.3 The Supplier will in no case be liable for damage that has not been caused by the Supplier intentionally or by gross negligence, or for damage caused by circumstances excluding liability, extraordinary and unpredictable obstacles occurring independently from its will or by force majeure (the parties have agreed that force majeure refers to eg a strike, lockout, war and limitation resulting from a state of war, terrorist attacks, cybernetic attacks, uprising, effect of natural forces, fire, pandemics, incidents caused by a cybernetic war, etc.), or for other damage, where liability is excluded by these Terms and Conditions. The Supplier is not obliged to pay damages to a person other than the Client. The maximum amount of damages, which the Supplier is obliged to pay for a breach of a contract, and which occurs once in a calendar year, will not exceed ten times the amount of the remuneration received by the Supplier based on such a contract in the relevant calendar year.
7.4 These Terms and Conditions and any documents they refer to form an integral part of a contract made between the Client and Supplier. In case of any discrepancy between the content of the contract and the Terms and Conditions, the text stated in the contract will be used. Written contracts may be amended or terminated only in writing; any amendment in a less strict form is excluded. A contract which was concluded by executive directors representing the Supplier may be amended only by a legal act, where the Supplier will be represented only by executive directors or persons explicitly authorized to perform such an act according to an individual written authorization.
7.5 The Supplier is entitled to modify these Terms and Conditions to a reasonable extent, especially in the case of:
a) changes in individual products, which would affect their function, including changes made by suppliers of those products;
b) introduction of new products;
c) changes in or cancellation of legal regulations, adoption of new legal regulations or changes in the interpretation of the applicable legal regulation;
d) changes in prices charged to the Supplier by third persons;
e) changes in the level of prices in the market;
f) changes in the interpretation of the applicable legal regulations;
g) unpredictable changes in the market;
h) changes made in the terms and conditions of suppliers of software solutions and other systems and products or advertising.
Changes will be announced to the Client based on the Supplier's choice either by sending the relevant information and full wording of the change in the terms and conditions in an appropriate format (eg .pdf or .html) to the Client's contact e -mail address or by a written notice. Such a change becomes valid for the Supplier and Client upon the lapse of the period of time determined by the Supplier, which is usually one month, however, not exceeding 25 days after the notification of the change. If the Client does not agree with the change, it is entitled to terminate the relevant contract within the period of time according to the preceding sentence, subject to a 30-day notice period. If the Client asserts the right to terminate the contract, such an early termination of the contract will not be deemed a breach thereof by the Client, and the Client´s right to agreed discounts will not be extinguished or restricted thereby (unless the right ceased to exist or was (could have been) restricted for other reasons on the part of the Client). If the Client does not use his right to terminate the contract, he is assumed to agree with the change. However, the Supplier reserves the right to accept such changes in the terms and conditions that are not connected with the Client's right to terminate the contract, provided that the Client will be bound by the change only if it agrees with it. Changes made by suppliers of third-party products become effective at the moment as determined by those suppliers of products.
If new products are introduced, the Client reserves the right to determine different terms and conditions, technical conditions or price lists for them.
Changes in the personal data processing notice can be made at any time without limitation. The Client will be acquainted with such changes in a suitable way.
7.6 Pursuant to Section 89a of the Civil Procedure Code and/or Regulation (EU) No. 1215/2012, the Contracting Parties have hereby agreed on the jurisdiction of Czech courts for all disputes arising between them out of this contract, namely the local jurisdiction of the District Court for Prague 4 as the first-instance court. If a regional court will be the first-instance court, the Contracting Parties have agreed on the local jurisdiction of the Municipal Court in Prague for all disputes between them.
7.7 The Client undertakes to meet duties related to a contract as determined for the relationship between the Client and the Supplier by Act No. 340/2015 Coll. (hereinafter the “Register of Contracts Act”) at its expense and within periods determined by the law, provided that this Act is applied in the relevant case. If the Act enables not to publish some parts of the contract or information, the Client will not publish those parts of the contract or information.
In particular, the Client undertakes to ensure the disclosure of this contract in the Register of Contract pursuant to the Register of Contracts Act properly and in time, without undue delay, within 15 days after its execution at the latest, being obliged especially to:
- create an electronic picture of the text content of the contract in an open and machine-readable format;
- exclude information from the contract that must not (or does not need to) be published;
- fill in metadata correctly;
- send the contract to the administrator of the register for publishing;
- inform the Supplier about the publishing of the contract by sending a confirmation of publishing generated by the administrator of the Register of Contract without undue delay day after it has received the confirmation.
The Supplier is entitled to arrange the publication of the contract by itself, if the Client fails to publish the contract within 15 days after the date of its execution, or if it has a reasonable ground for doing so.
The Supplier is entitled to request damages or compensation for other than proprietary loss caused by a breach of the Client's contractual obligation to publish this contract duly and in time.
The Contracting Parties have agreed that any and all provisions of this contract, especially this article, concerning the publishing of the contract pursuant to the Register of Contract Act, are separable from the remaining content of the contract, and that the ineffectiveness or invalidity of the contract, if any, resulting from that fact that it has not been published, does not make it ineffective or invalid. The Contracting Parties have agreed that in case of doubts concerning whether the value of the subject-matter of a contract exceeds CZK 50,000 or not, the contract will be published. By publishing this contract, the Contracting Parties will not be released from their duty to maintain the confidentiality of its content.
If a contract between the Client and Supplier does not become effective or if it becomes invalid because it has not been published, the Contracting Parties undertake to provide mutual assistance and to remedy this situation by a substitution agreement.
The Contracting Parties have agreed that in case of a lapse of time determined for sending the contract to the administrator of the Register for publishing, the Supplier is entitled to withdraw from this contract.
The Client undertakes to treat the content of the contract as its trade secret. The same also applies to other legal acts regulating the publishing of information, especially Act No. 247/1995 Coll., and other election legislation.
7.8 If there are grounds on the part of the Client that could establish statutory liability or any other liability of the Supplier for the Client's tax liability, the Client is obliged to inform the Supplier about such facts immediately in writing.
7.9 Withdrawal from the contract made between the Client and Supplier is always effective ex nunc. This contract may be withdrawn from for reasons explicitly stated therein or for statutory reasons.
7.10 If some of the provisions of an order, partial contract, master agreement or these Terms and Conditions appear to be invalid, ineffective or unenforceable, or if a provision is missing, the remaining provisions will not be affected thereby. The parties will agree on the replacement of such an invalid, ineffective or unenforceable provision with an alternative provision which meets the same business purposes as the invalid, ineffective or unenforceable provision as much as possible.
7.11 The Terms and Conditions come into force and effect as of 1 January 2021.
The previous version of the terms and conditions valid from 25.5.2018 can be found here.
The notice of processing of the Client's personal data by the Supplier can be found here.
CZ 
DE 