Terms & Conditions, v. 1.03
of Incomaker s.r.o. to provide Incomaker services and support
Legal entity subjectivity
- Incomaker sro is a limited liability company incorporated under Czech law ("Incomaker" or "Supplier").
- Incomaker is registered in the Commercial Register maintained by the Municipal Court in Prague, Section C, Entry 243453.
- Incomaker is located at: Haškova 1582, Roztoky 253 63, Czech Republic, ID: 04161301, VAT ID: CZ04161301
Definition of terms
- "Copyright Act" - Act No. 121/2000 Coll. on Copyright, on Rights Related to Copyright and on Amendments to Certain Acts, as amended.
- "Documentation", "Software Documentation", "Incomaker Implementation and Deployment Project" - is a user documentation (usually in electronic form, available over the Internet) to the system in question describing its functionality, mode of use and conditions for operating the system.
- "Incomaker Marketing Information System" or "System" or "Service" - software provided by the Provider as a rule via the Internet as a service protected by the Copyright Act which the Supplier has developed and offers under the General Terms and Conditions
- "NOZ" - Act No. 89/2012 Coll., Civil Code, as amended
- "Onboarding" - Processes and summaries of actions made at the beginning of a contractual relationship (eg, initial system setup, data import, training, etc.) covered by the Agreement under these General Conditions, reported by the Contractor for payment.
- "Requirement" - a requirement for Supplier's technical (customer) support to address the defect of the system (actual or supposed)
- "Contract" - an Incomaker service contract
- "Defeat" - deviation from the system specification defined by the function description in existing Documentation. The defect exists if the System does not perform the functions listed in the Documentation or delivers erroneous results or interrupts its operation uncontrollably.
- "General Terms" - these General Terms and Conditions
- "Remote Access" means a service whereby a Supplier's Worker connects to a secure connection on the Workstation and / or Customer's server upon request and activates the connection. The service is designed to handle complaints and customer support.
- "Customer" or "Customer" - a natural or legal person that is a party to the agreement under these general terms and conditions that uses the System for its own use.
- "Personal Data Protection Act" - Act No. 101/2000 Coll. on the Protection of Personal Data, as amended
- "Settlement Period" - is the time interval in which invoices are issued under the terms agreed in the Agreement, usually a calendar month.
Object of the contract
- The subject of the Agreement is the Supplier's obligation to provide for the Customer the operation and access to the Incomaker Marketing Information System in the agreed range via the Internet and the Customer's obligation to pay fees for these services according to the valid price list.
Supplier's Rights and Obligations
- The Supplier undertakes to provide the Customer with access to the System via the Internet. The supplier undertakes to always update the system to the highest available stable version. The customer takes note of the scope of functionality available at the time.
- The Contractor undertakes to remove from the System without any undue delay defects that prevent its further use. The Corrected Version of the System will be published by the Supplier through standard distribution mechanisms. The terms and conditions of claiming are part of these General Terms and Conditions.
- The Supplier reserves the right to discontinue support for the functionality of the System operated on those platforms that their primary producers have ceased to support at the level of compatibility with third-party software products. The Supplier is not responsible for the operation of the System in these environments. Also, the Supplier is not liable for any damages resulting from such a situation, incl. possible costs of solving it.
- The vendor has the right to make changes to the System to expand its capabilities, while making changes to the System as a result of the development of programming tools, operating systems, technical devices, legislation, or research and knowledge advancement.
- In the event that the Customer does not pay the price for the use of the Service within the agreed term after signing the Contract, the Supplier has the right to withdraw from the respective Contract. Withdrawal from the Agreement excludes the Customer's ability to use the affected system.
- The supplier has the right to update his pricelist. Such a change is the Supplier obliged to notify the Customer at least 30 days in advance. The customer may express a disagreement with the price change, which means termination of the Contract with a two-month notice period running from the first day of the month following the delivery of the disagreement with the change in price. During the notice period, the contractual relationship between the Supplier and the Customer is the original price. If the customer does not agree within 30 days of notification of the change of price list, he / she is deemed to agree with the change.
- The Contractor performs proprietary rights under the trade name Incomaker in accordance with the Copyright Act and is also entitled to sub-license to those parts of the System developed by third parties on the basis of contractual relations with these third parties under the Copyright Act.
- The rights to use the System are provided by the Supplier to the Customer through the Agreement. Except as otherwise expressly provided by the Agreement, the Supplier shall be deemed to have provided the Customer with a time-limited non-exclusive right over a period of 10 years to use any result of the Services or Services provided or made by the Contractor under contract / contracts that meet the features of the copyright work objects protected by the right to intellectual or other industrial property that the Contractor has made or provided in the course of his activities or services to the Customer for his benefit.
- The provider provides a backup of user data on a daily basis.
- The Supplier undertakes as a part of this service to distribute e-mail messages to the target users of the Customer. An e-mail is understood to mean, in particular, emails, social networking, SMS, and other forms of electronic information. The supplier guarantees the sending of electronic messages but technically can not guarantee delivery to end recipients and be responsible for non-delivery.
- The Contractor undertakes not to use Customer's data for his own use or to provide it to third parties. An exception is the situation where such provision of data requires valid legislation and the use of anonymized aggregated information collected across customer accounts (ie, bulk analyzes and statistics) to improve the performance of the algorithms of the System itself.
Rights and obligations of the Customer
- The Customer has the right to use the System to the extent agreed by these General Terms and Conditions, the applicable Agreement, in accordance with the System Licensing Authorization, the instructions of the Supplier's personnel, and the terms of the Documentation.
- The Customer undertakes to update the parameters of its technical equipment and the software platforms used to meet the technical requirements of the System as a result of the development of the software.
- The Customer undertakes to pay properly and in good time for the performance provided. The payment obligation is fulfilled on the date of crediting on the Contractor's account.
- The Customer undertakes to notify the Supplier in writing without undue delay of any change to the Customer and its staff.
- In order to diagnose defects and support, the Customer will grant remote access to their system to Supplier's suppliers according to the Supplier's specifications. In the event that the Customer does not allow Remote Access to his / her system, he / she is required to bear all costs associated with the diagnosis of the problem or the support, provided these have been performed in a different agreed manner. In such a case, the Supplier is not liable for any damages incurred by the Customer.
- The Customer is not, in particular, entitled to modify the System or its part (except for modifications using the tools provided for that purpose), translate into other programming languages or national languages, include it in another program product, and distribute the products thus created and allow third parties remote access to the System for the purpose of editing data of other legal or natural persons other than the Customer. This provision also applies to third-party software if this is the subject of the Agreement.
- The Customer undertakes to use the System only for its purpose for the purpose for which the System was created, to make it available to third parties in any way, and not to reverse engineer the System or attempt it.
- Except as expressly provided in the Agreement, the Customer may not modify, modify, copy or otherwise reproduce any information, the original or reproductions of the System or any part of it or make any aggregate or derivative works thereof. Customer is not entitled to use the System for any purpose inconsistent with the Agreement and these General Terms or Legal Regulations. The user may not use the system in a manner that could reduce the value of the work, damage, disable, overload or impair the functionality of the servers operated by the Supplier, or interfere with the use of these servers or the System by third parties. Customer may not, in any way, obtain or attempt to obtain any reproductions of the Work (including for personal use), any material or information relating to the System, which are not or have not been made public or provided through servers operated by the provider. In the event of a breach of this contractual obligation, the Customer is liable for damages that will cause the Supplier to do so.
- Customer undertakes to use the service in accordance with applicable law and will not use the System for the infringement.
- Customer undertakes not to use the System to distribute viruses, malware, or any other malicious content.
- The Customer undertakes not to use the System for the distribution of works protected by the Copyright Act, the dissemination of which is not authorized.
- The Customer undertakes not to spread through the Spam System. Spam is considered an unsolicited e-mail message sent to the recipient without its prior consent, including any e-mail to promote goods and services where it is not clear that it is a commercial message, the sender's address is missing or is incomplete and is not given the possibility that the end recipient has signed out of receiving such a message.
- The customer undertakes not to promote through the System the promotion of illicit drugs.
- The customer undertakes not to promote or access child pornography through the System.
- The Customer undertakes not to distribute through the System any content that is illegal in the jurisdiction under which the target addressees of its electronic messages fall.
- The Customer undertakes not to disseminate through the System any content that prohibits the dissemination of the general terms and conditions of third parties through which content is disseminated (for example, but not just social networks).
- The Customer acknowledges that the Supplier is entitled to automatically supplement the missing elements of the message under Article 5.12 to automatically comply with the legal requirements and requirements of the service providers on the addressee's side. In such a case, the supplier does not guarantee the compliance of such automated items with the design of the distributed electronic message.
- Customer acknowledges that the Supplier is not responsible for the content distributed by the Customer.
- Violation of any of the provisions in Articles 5.10 to 5.16 may be considered a gross breach of the Treaty. In such a case, the Supplier may reject the distributeable content without the Customer being entitled to a refund of the service fee and / or withdrawing from the Contract. Withdrawal from the Agreement for this reason does not entitle you to a refund of any price already paid for the Service nor does it exclude Customer's liability for damages incurred by the Supplier in this way.
Price and payment terms
- Unless otherwise stipulated, the performance charges specified in the Agreement do not include value added tax.
- The default billing period is one month but the Supplier may also negotiate a longer billing period with the Customer. When negotiating a Contract with a longer billing period, the Contractor usually gives the Customer a business discount.
- Unless otherwise agreed, the Service price shall be paid in advance for the following billing period. If the Customer does not wish to change the Settlement Period's duration by at least 3 days before the end of the current Settlement Period, the next Settlement Period is deemed to be the same as the current Clearing Period, according to which the Supplier will invoice.
- The parties agree to pay the invoices for 14 days from the date of their issue.
- The Contracting Parties agree that if the Customer does not pay any financial performance resulting from the Contract or the General Terms and Conditions within the term specified in the invoice, the Supplier is entitled to claim and the Customer is obliged to pay to the Contractor contractual interest for late payment of 0.1% of the amount due for each, even the day of delay started.
- The Contractor is entitled to unilaterally suspend the performance of his contractual obligations in the event that the Customer is in default with the payment of any amount owed to the Supplier.
- The price does not include Onboarding, ancillary costs associated with the subject of performance (such as accommodation, transport, etc.), unless otherwise stipulated by the Contract. These purposefully spent costs will be invoiced separately on the basis of approved statements and constitute a separate claim by the Supplier.
- The Customer agrees that the Supplier is entitled to offset a payable payable by the Customer to the Supplier against any claim by the Customer against the Supplier irrespective of the legal relationship from which it arises. The Customer agrees that the Contractor is entitled to set aside his claims also against any claims of the Customer which are not yet due, which can not be offset by the execution of a judgment which can not be brought before the court or which is time-barred.
- Wherever this is inconsistent with the law, the Customer agrees that all rights and claims of the Supplier for the Customer shall be time-barred within 15 years, and where a legal arrangement in force prior to the effective date of the NOZ applies within a period of ten years from the date on which it could have been executed / applied for the first time by the Contractor.
Service level and claim
- The Supplier undertakes to ensure that the system is as accessible as possible, at least 99% of the time in the given calendar month.
- The system is not considered unavailable under this article when scheduled maintenance is performed.
- Scheduled maintenance is always pre-published in the application interface and notified to the user by e-mail.
- The Supplier undertakes to minimize the unavailability of the System for the purpose of planned maintenance to the minimum possible and to direct it to a time that minimizes the Customer's operating times as far as possible.
- The Contracting Parties agree that scheduled maintenance shall not exceed 6 hours per month.
- The subject of the claim is Vada. The Supplier undertakes to remove defects free of charge.
The defect is not a state of the System that meets the external characteristics of the defect, but can not be attributed to the Supplier, in particular:
- use of the System by Customer inconsistent with the Documentation,
- the use of the System by means of technological means not meeting the technical requirements of the System (eg obsolete Internet browser),
- faulty integration of the System with Third-Party Systems, if not provided by the Supplier,
- errors in system localization,
- minor errors in the System User Interface, unless they constitute a disincentive or serious impairment of the Work with the System or the limitation of its functionality,
- defects resulting from negligence of Customer's maintenance,
- failures in Internet service provider networks,
- Customer delivers to the Supplier in an agreed manner the Requirements.
- Request A (critical defect) is a defect caused by the Provider to cause a state of the System where it is not possible to perform any operations, even at data browsing level, and the Customer is unable to fulfill its obligations towards third parties (its clients, etc.) this is a situation where the System function is directly compromised, and these defects can not be dispensed with in a substitute way, or it is necessary to proceed to complicated and expensive solutions outside the System. Critical Vada is considered to be unavailability of the system under Article 7.1.
- Requirement B (serious defect) is a defect caused by the Provider, where a certain functionality of the Data Processing and Processing System is inactive, but its operation may be replaced by other functionality, sometimes at the expense of labor, according to the Supplier's instructions.
- Requirement C (minor defect) is a defect in which any of the System functionality is not fully operational on the basis of Customer's views, but this condition has no or negligible impacts on Customer's operations.
- The D (System Improvement) requirement is not a defect, but a situation where the System in a particular aspect (such as a user interface) does not meet the Customer's imagination but works in accordance with the Documentation and in a manner that can be considered as customary. The Supplier includes Requirements D in the System Development Plan.
- Categorization of Requirements is performed by the Supplier. In the event of a disagreement, the decision on the error category is escalated in the Supplier's and Customer's management hierarchy.
- The request must contain a defect of sufficient detail so that the Supplier can categorize it. It will be claimed by the Customer through the Supplier Support site (at https://www.incomaker.com/support ) or via email ( support[at]incomaker[dot]com ), or any other route agreed in the Agreement. From the delivery of the request through these channels, the deadlines listed below are calculated.
The Supplier undertakes to resolve the request in all categories as soon as possible. Unless otherwise specified in the Agreement, the following deadlines are set as binding:
Deadline for assessment Defects / commencement of work
Deadline for Removal of Defects
12 working hours
4 working days
48 working hours
15 business days
15 business days
30 working days
- The time for the removal of the Defects does not include the period for which the Supplier waits for the Customer to provide the necessary co-operation. Synergy is considered to be necessary, especially if such cooperation is necessary to identify the cause, consequences and remedies of the defect complained of.
- The time for the removal of the Defects does not include the period for which the Supplier could not resolve the complaint due to force majeure.
- The Supplier may, in particular, for Category A Requirements and / or B, in order to address as quickly as possible a defect, to use a temporary solution to defeat the defect in such a way that from the point of view of the Customer, it is a System without a defect or with a serious impact on the laborious use of the System. Thus, the above deadlines are deemed to be met, but the Supplier is still required to deliver the final solution to replace the temporary solution described here.
- Removal of a defect is deemed to be a Supplier's update of the System or removal by another electronic delivery. Removal of a defect is deemed to be the disclosure of such an alternative procedure by the Supplier, compliance with which will ensure the functionality of the defective functionality. The removal of the Defects is also considered as a reclassification by partial removal of the Defeat to a minor defect according to the above categorization, the total removal time of which must not exceed the terms mentioned in 7.11. for the category in which Vada is ranked after reclassification.
Operating conditions and warranty
- The Supplier warrants that the System is free of legal defects, in no way violates or damages the rights of third parties, including property rights, contractual obligations, trade secrets of proprietary information, confidentiality, trade marks, copyright or patent rights.
- The Customer is responsible for the creation, use, and operation of data in the System. The vendor provides data backup in the system. Customer is responsible for data loss caused by its inappropriate use of the System. The Supplier is not responsible for any damages including loss of data generated by Customer's use of the System inconsistent with the Documentation, the use of computer and other equipment inappropriate for operation (eg obsolete), due to third party computer programs, viruses on the part of the Customer or other external influences, can.
- Neither party is liable for delays in the fulfillment of its obligations as a result of circumstances excluding liability (force majeure).
Protection of confidential information and business secrets
- In fulfilling contractual obligations, Customer and Supplier may exchange information that is considered confidential. Confidential information includes, but is not limited to, all information provided to one another, subject to business secrets within the meaning of Section 504 of the FCI.
No Contracting Party may disclose or otherwise disclose to any third party any information about the terms, subject matter and performance of the Agreement, or any other information relating to negotiations relating to or in relation to the other Party, in particular (but not limited to) data and information stored in the System By the Customer, or to use them in contravention of their purpose for their own needs, except for the information provided by the Parties under a statutory obligation or the use of data and information under the provisions of the Agreement or the General Terms. This information is considered by the parties to be confidential and the parties undertake to preserve this confidentiality as much as possible. The exception to the confidentiality obligation under the previous sentence of this Article shall also apply to the information communicated:
- employees, advisers and other associates or subcontractors of the Parties bound by similar obligations of confidentiality,
- employees of the competent state institutions and courts, where disclosure requires legal or otherwise legitimate disclosure,
- where the relevant Contracting Party has already published the information or the information has been generally known without any breach of any of its obligations by any of the Contracting Parties.
- Any public notices or representations relating to these General Terms, the Contract, or the performance of any contractual relationship between the Supplier and the Customer may be made only upon prior written agreement of both Contracting Parties on the content and form of such public announcement or statement, except for any printed statement providing general information about the commencement, progressing, or termination of the process of implementing the Agreement with the Customer, but without any indication of any payments or amounts of the negotiated price. In the event of a breach of this contractual obligation, the contracting parties shall negotiate a contractual fine of 100,000 CZK which the offending party is obliged to pay within 5 days of the receipt of the relevant call. For the avoidance of doubt,
- Under the terms and conditions set forth in this article, and provided that the rights and legitimate interests of the Customer are unaffected, the Customer gives the Supplier the consent to the Supplier to indicate in its print materials and to promote the Customer's business name as a reference.
Origin, change and termination of the contract
- The agreement between the Supplier and the Customer may, in addition to the written form, also arise in the form of the Customer's consent with these General Terms and Conditions for the electronic conclusion of the contract (registration).
- If the Contract is concluded in electronic form, the Customer must complete the online registration. The Supplier considers the data entered in the electronic form by the Customer to be correct.
- The contract may be altered in the same form as its origin, unless otherwise specified by these General Conditions.
- Unless the Parties otherwise agree, the Agreement shall be concluded for an indefinite period of time.
A contract between the Customer and the Supplier may be terminated:
- Withdrawal by the Contracting Party from the Agreement in the event that the other party substantially violates the provisions of the Agreement or these General Conditions, declare it bankrupt or enter into liquidation. Withdrawal must be in writing. Customer's outstanding debts to the Supplier become payable on the first business day following the delivery of the notice of withdrawal to the Customer unless the Contractor specifies the later date.
- With the termination of one of the parties, without giving any reason, with the notice period stipulated in the Contract. If it is not specified in the Contract, the notice period is 2 months and begins on the first day of the next calendar month following receipt of the notice.
- By agreement of the parties.
- For all notice periods specified in the Agreement or these General Terms and Conditions, if a longer Settlement Period is agreed between the Supplier and the Customer for more than one month and the end of the current Settlement Period occurs later than the last day of the notice period, the deadline is moved to the end of the current Clearing Period.
Processing of personal data
- The Customer grants the Supplier consent in accordance with the Personal Data Protection Act, as amended, with the processing of personal data for inclusion in the Contractor's customer database. Such data will not be processed through third parties. This consent is provided voluntarily for an indefinite period or in an appeal.
- By accepting these Terms and Conditions, the Customer agrees to the Supplier agreeing to send business communications to its electronic addresses until the Customer demonstrably rejects their consent.
- The customer agrees to indicate the name of his business company in the print materials and promotional events of the Supplier.
- The vendor is a personal data administrator whose customer is the processor.
- Customer delivers to the Contractor, for the purposes of this Agreement, the personal data of his clients in the scope and form specified in the Agreement.
- The Contractor shall ensure that all technical and organizational measures are taken to prevent unauthorized, unauthorized, unauthorized, unauthorized, unauthorized, unauthorized, unauthorized, unauthorized, unauthorized, tampering or any other misuse of personal data.
The Contractor undertakes to process and document the technical and organizational measures taken and implemented to ensure the protection of personal data in accordance with the law and other legal regulations, ensuring, controlling and responsible for:
- compliance with the guidelines for the processing of personal data by persons having direct access to personal data,
- to prevent unauthorized persons from accessing personal data and the means of processing it,
- prevent the unauthorized reading, creation, copying, transmission, modification or deletion of records containing personal data; and
- measures to identify and verify to whom the personal data were transmitted.
In the field of automatic data processing, the Parties shall adopt the following technical and organizational measures:
- The supplier ensures redundant storage of data (where applicable), ie the storage of data in the form of several independent copies so that the destruction, modification or damage of one copy does not affect the other copies,
- The vendor shall ensure that all data transmissions between the Customer's system and the Supplier's systems are encrypted as well as between the Supplier's systems, where this is not excluded by the SSL protocol, to prevent unauthorized data leakage to third parties,
- The Contractor undertakes, without undue delay, to apply any changes and security improvements that are attainable at that time,
- In the event that either party becomes aware of facts that may affect the security of the system and / or jeopardize the protection of personal data, it shall promptly inform the other Party and take part in the implementation of measures leading to the removal of such security threat,
- The provider will provide a regular backup of the data content.
- The Contractor shall ensure that the automated processing of personal data systems is used only by authorized persons. The Contractor shall ensure that natural persons authorized to use the systems for the automated processing of personal data have access only to personal data corresponding to the privileges of such persons on the basis of special user privileges established exclusively for these persons,
- The provider will make electronic records to determine and verify when and by whom personal data have been recorded or otherwise processed, and
- The provider will prevent unauthorized access to servers, data carriers, and other technical equipment.
- The supplier, through the issuance of its internal regulations, through specific contractual arrangements, ensure that its employees and other persons processing the personal data will process personal data only under the conditions and to the extent of the processor specified and corresponding to this contract concluded between the processor and the controller and the law, in particular will be (and also imposes on such persons) the confidentiality of personal data and of security measures the disclosure of which would jeopardize the security of personal data, even for the period after the termination of employment or the relevant work,
- The Parties shall, within the best of their knowledge, make every effort to ensure, in the circumstances, the security of personal data in any manner other than that expressly provided herein.
Applicable law and dispute resolution
- These General Terms and the Agreement shall be governed by the law of the Czech Republic, excluding conflicting standards that would refer to the use of foreign law.
- In the event of any dispute between the Parties arising out of these General Terms and Conditions and the Agreement, the Parties undertake to make the greatest possible effort, which may be fairly demanded by them, to arrive at an amicable settlement by agreement between the Parties. In the absence of amicable settlement, all disputes between the parties will be decided by the courts of the Czech Republic.
- In the event of a dispute between the parties through the courts of the Czech Republic.
Prohibition of competition
- Neither Contracting Party shall be entitled, for the duration of the Agreement and for two years after its termination or termination, to employ the employees of the other Contracting Party, either directly or indirectly, or in entities in which it has a decisive holding or the possibility of another, without the prior written consent of the other Contracting Party how to influence their decision-making. "Employee" of an employee of the other Contracting Party means the conclusion of an employment relationship or similar contractual relationship (including relationships based on employment agreements and other similar civil relationships) with an employee of the other Contracting Party, whether directly between a Contracting Party and such an employee , respectively. indirectly between such an employee and a third party in which the contracting party has a decisive influence or the possibility of influencing its decision-making.
- In case of violation of the previous provision 13.1. the injured party has the right to demand from the other party for each individual proven infringement case a contractual penalty equal to 12 times the average monthly gross wage or other remuneration of the employee. The contractual penalty is payable on the basis of a complaint from the injured party within 15 days of the date of delivery of the request to the other party. The payment of the contractual penalty is without prejudice to the right to damages in excess of the contractual penalty paid.
- By accepting these General Terms, the Customer gives the Supplier, pursuant to Act No. 235/2004 Coll. on VAT, § 26 (3) consent to electronic invoicing.
- The Contracting Parties are authorized to fulfill their obligations through third parties without the written permission of the other party, but they are responsible for doing so themselves.
- If it has been agreed between the Supplier and the Customer that their relationship is governed by the General Terms and Conditions of Business, their relationship shall always be governed by the most up-to-date version of the General Conditions in force at the time of conclusion of the relevant Agreement.
- These General Terms and Conditions become effective and effective on March 27, 2017 and will therefore apply to the contractual relationships that came into force on that day and later.