General Terms and Conditions
of DATAWEPS s.r.o. company applicable to products provided by DATAWEPS agreed upon under Sections 1751 et seq. of Act No. 89/2012 Coll., Civil Code, related to contracts on provision of services by means of DATAWEPS s.r.o. applications (SocialWatch, Beed, Azor, etc.)
Provider: DATAWEPS s.r.o., Brno, Husovice, Nováčkova 401/53, post code: 614 00, email: firstname.lastname@example.org, bank account: 1012111044/5500, file No: C 4160 maintained by the Regional Court in Brno, (Hereinafter “DATAWEPS” or “Provider”)
- These General Terms and Conditions (hereinafter “GTC”) of DATAWEPS govern mutual rights and obligations between the Provider and the Corporation in the course of their business activity or in the course of their business (hereinafter “Client”) arising in connection with or out of individual contracts and/or specifications on service provision by means of Provider’s applications (e.g. SocialWatch, Beed, Azor, TrendLucid, Disivo, etc.) (hereinafter referred to as the “Contract”).
- Provisions diverging from these GTC can only be negotiated in a Contract. Diverging provisions in the Contract or other agreements between the Parties shall prevail over these GTC.
- All contractual relations are concluded in accordance with laws of the Czech Republic. Provisions of the GTC are an integral part of the Contract. Contract and GTC are executed in English.
- Wording of the GTC may be changed or supplemented by the Provider. Amended conditions will be announced by the Provider in an appropriate way on the website www.dataweps.com, as well as at their premises. This provision shall not affect the rights and obligations arising under the effective period of the previous version of GTC.
- By concluding the Contract, Client confirms that s/he has made him-/herself familiar with these GTC and agrees with them. Client is sufficiently informed about the GTC prior to implementation of the order (by concluding the Contract and/or Specification) and thus has the opportunity to become familiar with them. The concluded Contract is archived by the Provider for its successful fulfillment and is not accessible to third parties. These GTC are displayed on Provider’s website at www.dataweps.com and are sent to the Client in a PDF file by an e-mail as part of the draft contract, enabling him/her to archive and reproduce them.
Subject of the Contract
- Subject of the Contract is the commitment of DATAWEPS to provide the Client with a service defined and detailed therein.
- Contract is concluded when signed by both Parties, or when the draft contract and/or the specification is confirmed by the Client via email.
Client’s Registration, Setting Up a User Account
- For the purpose of correct provision of services, Client is registered with an account in the requested application that is exactly specified in the Contract (hereinafter “Application”).
- Based on the Client’s account registration, Client can access his/her user interface.
- Access to the user account is secured by the user name and password that the Client receives in an email.
- If the Client is required to provide assistance to initiate the provision of the selected services within the Application (e.g. by providing input data, access data, payment for the services provided, etc.), Client’s failure to provide the necessary assistance is not a reason to postpone billing start date for the ordered service.
Contract Duration, Contract Termination
- Provider shall provide the services for the Client throughout the duration of the Contract. However, providing services may be suspended by the Provider:
- while there is an obstacle on Provider’s part making it objectively impossible to provide some of the services stipulated under the Contract; or
- in other cases allowed by the Contract or these GTC.
- Provider is entitled to terminate provision of the services unilaterally and withdraw from the Contract without any further actions in the event the Client’s being in default presents a material breach of obligations arising from the Contract or GTC. A material breach of Contract includes:
- Client’s any late payment for more than 15 calendar days; or
- repeated failure to fulfill the obligations of the Contract, GTC or other contractual documents; or
- using the services provided in violation of the Contract, these GTC, or applicable laws and regulations, good morals and common ethical values.
- In the event of withdrawal from the Contract for the reasons referred to in points b) and/or c), Client is not entitled to a refund of the respective proportion of the price paid for provision of services.
- Both, Provider and Client are entitled to terminate the Contract by a notice of termination even without giving a reason. The notice period is 1 month and begins on the first day of the month following the month in which the notice of termination was delivered to the other Party.
Remuneration (Price) for the Provision of Services, Terms of Payment
- After signing the Contract and these GTC, Provider will issue a proforma invoice to the Client for the required service under the Contract.
- The Price for the service and the calculation of the Price for the service for the purposes of proforma invoice and billing are determined on the basis of the Contract.
- Client undertakes to pay DATAWEPS the Price for the services provided under the Contract at the amount established under the Contract.
- Based on the full payment of this proforma invoice, Provider can launch the requested service to the Client.
- The service is launched on the first or the fifteenth day of the month. If this day is a non-working day, the service will be launched on the next working day.
- If the service is scheduled to be launched on the fifteenth day of the month, the first proforma invoice is issued for the remainder of the month until the end of the month. Additional proforma invoices are issued for a full month each.
- Provider is obliged to send the Client a regular invoice for this advance payment within 15 days of payment of the proforma invoice.
- At the beginning of each month, Price of the used service is calculated in compliance with the price list and an invoice attributable to the proforma invoice is issued for the used services. In case an outstanding amount, Client is issued an additional invoice for the delivered services. Any overpayment is set off the next proforma invoice.
- The amount of proforma invoice is estimated based on the actual use of the services by the Client in the previous months and taking into account the seasonal factors and other relevant inputs. In the case of the first, or second, proforma invoices, the amount is determined on the basis of the Contract or communication between the Provider and the Client.
- By concluding the Contract, Client has granted his/her consent to DATAWEPS with sending invoices electronically in accordance with the relevant provisions of Act No. 235/2004 Coll., on Value Added Tax. Electronically produced invoices are considered to be fully effective by the Parties.
- Client is entitled to complain about incorrect billing of services within 30 days from its receipt. Otherwise, Client agrees with the amount invoiced as his/her obligation to the Provider.
- In the event the Client is in default with the payment of remuneration, Provider is entitled to stop providing services under the Contract to the Client. Provider will not provide the Client with services under the Contract until the Client pays the payment in default including any accessions. Restricted or suspended provision of services by the Provider due to a breach of Client’s obligations does not relieve the Client from his/her obligation to pay the agreed payments or gives him/her no right to be indemnified.
- Mutual communication and delivery of documents will preferably be performed via e-mail at email@example.com. Each email message is delivered to the other Party on the day it is sent unless the recipient of the message proves that s/he has been delivered it later. Personal delivery is also possible – in this case it is necessary to confirm a receipt by the Client with the date, name, surname, and/or company, with his/her signature.
- If the document requires approval, confirmation or consent or opinion from one of the Parties, granting of the requested act will not be delayed without an objective cause.
- If the document is sent by registered mail and if the letter is taken over by the other Party at the address specified in the Contract, or if the document is not picked up during the storage period and the postal license holder returns it, the delivery will be deemed successful with all legal consequences on the third day from the date on which the document was dispatched.
Obligations due to Defective Performance
- Client is obliged to complain about defective performance without delay, but no later than within 4 days after the occurrence of this defect, in writing to the Provider. In this written complaint, Client shall provide his/her identification data and clearly describe what s/he sees as a defect. DATAWEPS shall solve the claim without undue delay in the shortest possible time, corresponding to the complexity, technical and administrative demands of the claim, no later than 30 days from the date of its delivery.
- In case the Client complaints about the defects in a timely manner, s/he is entitled to request an extension of the period of use equal to the period for which the performance was defective. If the Client fails to complain about defects in accordance with the preceding paragraph hereof, his/her claim expires.
- Client is obliged to inform DATAWEPS of any changes to his/her data regarding the provided product and related service. In the event that Client violates this obligation, DATAWEPS shall not be liable for defects or damages to the Client due to inaccurate information provided demonstrably by the Client to DATAWEPS as the most recent valid information.
Liability for Damages, Contractual Penalties
- DATAWEPS is liable to the Client for any damage caused by breaching the obligations of DATAWEPS to the extent provided for by the following provisions, unless DATAWEPS proves that the breach of the obligations was due to circumstances that exclude in whole or in part their liability.
- Before concluding the Contract, Parties agreed that the aggregate foreseeable damage that could be incurred as a result of a breach of DATAWEPS obligations may amount to a maximum sum corresponding to the two-month average amount negotiated for the product where the breach occurred.
- In the event the Client fails to notify DATAWEPS in writing of defects within the time limit which s/he is entitled to claim defects under Article 7 (1) hereof, s/he is deemed not to have fulfilled his/her statutory obligation and DATAWEPS is not obliged to compensate for any damages incurred in connection with this non-fulfillment of the obligation, applying especially to the damage incurred until the fulfillment of the obligation to inform about the occurrence or the possibility of occurrence of loss.
- DATAWEPS is not liable for any damage caused by force majeure, such as natural disasters, natural events, accidents, blackouts of public telecommunications networks, war or terrorist events, or blackouts of products and services caused by blackouts of power supply, servers, and so on.
- DATAWEPS is not liable for damages resulting from unavailability of services due to a technical defect or server failure not caused by the Provider. DATAWEPS is also not responsible for any damages resulting from blackouts or delays in services required to update or change the services provided.
- DATAWEPS is not liable for the behavior of clients or their use of the products and services provided, in particular in ways that are not in compliance with these GTC or laws, or for damages arising from misinterpretation and misuse of data or information in products or services provided by the Provider. DATAWEPS is not liable for temporary or permanent loss, destruction or corruption of data other than data that have already been obtained from the sources monitored and backed up by the Provider.
- Client is required to protect his/her access data to the Application (name and password). DATAWEPS is not liable for any misuse or loss of access data. DATAWEPS is committed to provide the Client with support at firstname.lastname@example.org on working days from 9:00 am to 5:00 pm.
- Client is liable for damage caused to the Provider in the event of a breach of duty contained herein within the scope of Ss 2913 et seq. of Act No. 89/2012 Coll., Civil Code.
- In the event the Client is in default with the payment of the Price for service under the Contract, DATAWEPS is entitled to charge the Client late payment interest of 0.05 % for each day of delay from the amount due. This shall not affect a claim for compensation of costs.
Consent to Processing and Publication of Data, Changes in Data
- Client grants his/her consent with processing his/her personal or identifiable information (personal and identifiable data hereinafter collectively “data”) for the purpose of providing DATAWEPS products and services, and using these data for marketing purposes, sending business communications and surveys.
- Client’s data is processed electronically. Client was also acquainted with the information and his/her rights in the scope pursuant to Section 11 of Act No. 101/2000 Coll., in particular that his/her consent is voluntary, that he has the statutory right to access his/her personal data and have them corrected. Changes and updates of personal and identifiable data during and after the Contract period can be made by email at email@example.com.
- Client may withdraw his/her consent to the processing of his/her personal data pursuant to these GTC at any time by a registered letter addressed to DATAWEPS. If the consent withdrawal results in a reduction or impossibility to provide the performance by DATAWEPS in the agreed extent, Client is not entitled to any compensation and is obliged to pay the agreed services in full according to the Contract.
- At concluding the Contract, Client has the right to declare whether he/she does not wish to be contacted for marketing purposes.
- In the event that Client provides DATAWEPS with access and access data to third party services and products for use in DATAWEPS products or services by their common agreement, such data and access to these third party services and products as well as and information on them are regarded confidential and DATAWEPS is not entitled to use them otherwise than to the extent necessary to ensure the delivery of the products or services to the Client within the agreed scope.
- Client’s consent under this Article hereof remains valid even after the Contract period between DATAWEPS and the Client expires.
- Client consents with his/her logo and/or company name being used for advertising and promotional purposes of DATAWEPS services and products, in particular for the purpose of publishing references in the Internet. Client hereby grants a license unlimited in time, territory, and amount to DATAWEPS to use the logo and the name of the Client’s business for all uses that are permitted by the Copyright Act of the Czech Republic. DATAWEPS is not required to use the license.
Confidential Information, Non-Disclosure Obligation
- Parties are obliged to respect confidentiality of any facts relating to the other Party of which they learn in the performance under the Contract, namely business information, product concepts, service functions, product pricing, as well as any other facts and information, especially of business and technical nature, which have been or will be communicated by a Party to the other Party in or in connection with the Contract and which are not publicly known or available at the same time, and which can be reasonably assumed to be confidential for the disclosing Party (hereinafter “Confidential Information”). All the information and data provided in writing, verbally or in any other form, are confidential, if it cannot be considered a trade secret under Sec. 504 of the NCC. Any Party also agrees to maintain confidentiality of the facts and information that are specifically designated as Confidential Information through notes “Secret”, “Confidential”, “Trade Secret” or similarly by the other Party. In order to avoid doubt, it is not necessary to explicitly designate Confidential Information, however, it is appropriate to do so to prevent any doubts about the nature of the information, in particular in cases where its nature would not be clearly evident.
- Each Party agrees to ensure to prevent disclosure, publication and distribution of Confidential Information obtained from the other Party and agrees to protect the secrecy of the Confidential Information. Each Party agrees to make every effort that may reasonably be required so that secrecy of the Confidential Information of the other Party is strictly observed by its employees and third parties that may be engaged in performing under the Contract. Should one of the Parties use a third party to perform hereunder, it is entitled to give this third party access to Confidential Information only to the extent necessary for their performance and it is also required to commit the third party to confidentiality to the extent hereof. Responsibility for breach of obligations by a third party is borne by that Party which made Confidential Information available for such third party.
- Parties agree to use the Confidential Information solely for performance under the Contract. Parties further agree to handle the Confidential Information under this Article hereof for the entire duration, validity and effectiveness of the Contract as well as after its termination, namely throughout the period during which the Confidential Information will not be publicly known and available.
- The commitments contained in the Contract and/or herein shall not apply to Confidential Information which:
- is publicly available at the time of providing them, or that will become legally and without breach hereof available to the public after their provision.
- is independently formed or independently acquired by the Party who originally received it as confidential.
- is required to be disclosed by the receiving Party under applicable laws or a decision by the competent public authorities, provided that the Party has immediately after the occurrence of such legal obligation informed the other Party about that fact (unless prevented from doing so by applicable laws or decisions by competent public authorities) and took such measures in the disclosed information to ensure the protection of such information to the maximum extent permitted by legal provisions or decision of public authorities.
- Upon request of the Party whose Confidential Information was disclosed, the other Party is obliged to prove the existence of due disclosure. Furthermore, Parties agree to limit the disclosure of Confidential Information or data only to those employees who need to directly participate on mutual cooperation between the Parties.
- In the event of any breach of the obligations laid down in this Article hereof, Party which has not breached the obligation may demand a contractual penalty in the amount of CZK 50,000.00 (say: fifty thousand Czech crowns) from the Party that did breach its obligations for each case of breach. The contractual penalty is payable within fifteen days from the date of receipt of the request for payment of the contractual penalty. Negotiating or paying any contractual penalties is without prejudice to compensation for any damages.
- The effective date hereof is 05 April 2018 and any previous provisions and practices are canceled thereby.