Goods and Services
VALID AND EFFECTIVE FROM 1 FEBRUARY 2019
1. INTRODUCTORY PROVISIONS
1.1. In accordance with § 1751 of the Civil Code, the following Terms and Conditions (hereinafter the “GTC”) shall form an integral part of the (order) agreement entered into by and between the Company and the Customer (hereinafter the “Agreement”) and they shall govern the rights and obligations of the Parties arising in connection with the Agreement or during the use of the Products. By offering the Agreement or, as the case may be, by accepting the Company’s offer to conclude an Agreement, the Customer expresses its acceptance of all the provisions of the present GTC. The provisions of the Agreement diverging from those laid down in the GTC take precedence over the provisions of the present GTC.
1.2. The headings contained in the present GTC serve only to provide better orientation. If the provisions of the present GTC ever refer to the singular, these references shall also include references to the plural and vice versa. Terms used in the GTC shall have the same meaning as the identical terms in the Agreement. The term “Product” shall be a general term denoting Goods, Services, and Software Products.
2. SOFTWARE PRODUCTS
2.1. The Parties agree that the Agreement relating to the Software Products (hereinafter the “Licensing Agreement”) shall be concluded only at the time when, after the start of the installation process, the Customer enters its unique licence code and accepts the General Terms and Conditions of the Company relating to the Software Product displayed there. The Customer may acquaint itself with the General Terms and Conditions relating to the Software Product in advance on the Company’s website. Unless the Customer accepts the General Terms and Conditions in question, the Customer shall not be permitted to install the licence for the Software Product and, with respect to the section relating to the Software Product, the Agreement shall not be concluded. In such a case, within 15 working days from the delivery of a notice or a communication from the Customer to the Company that it does not accept the General Terms and Conditions for the Software Product, the Company shall return the price of the licence for the Software Product to the Customer, if it was already paid by the Customer, in the amount already paid by the Customer for said licence for the Software Product. The Parties agree that the Customer shall not be entitled to the payment of any interest on late payments which could accrue in the event of the Company’s delay to return the already paid price of the licence to the Software Product if the Customer failed to deliver said notice to the Company.
3. RIGHTS AND OBLIGATIONS OF THE CUSTOMER
3.1. The Customer shall be entitled to use the Goods solely for its own needs and only for the purposes for which they are intended.
3.2. Along with the Goods, the Customer shall receive instructions for the use (installation) of the specific Goods. Should the Customer so wish, a Company representative shall carry out the installation and basic configuration of the Product (customisation) directly in the registered office or business premises of the Customer at the price of the Service ordered, and/or for a fee in the amount set out in the Price List currently published on the Company’s website.
3.3. The Customer is under an obligation to inform the Company without undue delay of the following:
a) any change in its details, i.e. in its title/trade name/name, registered office/place of business or, where appropriate, other details provided to the Company in connection with the Agreement or any change thereof or during the performance of any Service provided by the Company;
b) any change of the contact person or replacement or discharge of the proxy or expiry of any authorisation which was granted by the Customer and which may be used when dealing with the Company; this obligation also applies to an authorisation, if any, to act on behalf of the Customer which has not yet been entered in the Commercial Register, another public register or a similar foreign register;
c) any facts and/or changes which may be reasonably assumed to have a significant impact on the provision of the Products by the Company or any changes or events which it may be reasonably assumed can adversely affect the Customer’s ability to fulfil its obligations to the Company (e.g. a request to open insolvency or enforcement proceedings against the Customer, etc.).
3.4. The Customer shall not be entitled to use the logo, name, trade name or other details of the Company on any of its advertising or other materials without the prior written consent of the Company.
4. COMMUNICATION WITH THE CUSTOMER, DELIVERY
4.1. The Customer grants its explicit consent to the Company contacting the Customer by telephone when needed on the telephone number provided by the Customer between 8 a.m. and 8 p.m.
4.2. By concluding the Agreement, the Customer expressly agrees that the Company is entitled to record and archive telephone calls or any other communications between the Parties in connection with the provision or the use of the Products, using any available technological means, and to archive these recordings for the duration of the Agreement and then for five years after its termination. The Customer agrees to the Company recording communications between the Parties without further prior notice. The Company agrees to protect the recorded data against misuse.
4.3. The Company shall be authorised to send messages or information to the Customer concerning the Agreement, the GTC and any issues relating, directly or indirectly, to the Company’s Products. The Company is entitled to send such messages or information to the Customer through its customer account accessible on the Company’s web interface, by email or by other technical means.
4.4. The Customer sends messages and communications to the Company by postal services or email to the address of the Company which is indicated on the Company website to this end.
4.5. Messages or communications are considered as having been delivered when they enter an area within the reach of the recipient. If a message or communication is delivered to the Customer’s account accessible on the Company’s web interface, it is noted that it is considered as having been delivered when it is entered into the Customer’s account accessible on the Company’s web interface. If the Company delivers a message or a communication to the Customer to an email address of the Customer, this email message shall be deemed delivered when it is properly dispatched from the email address of the Company. The responsibility for the fact that an email message sent to the Customer by the Company was delivered to the spam folder of the Customer, for example, and that therefore the Customer failed to read it, shall not be borne by the Company.
4.6. The Customer takes note of the fact that the communication between the Company and the Customer is not encrypted or otherwise secured against disclosure to third parties, unless stated otherwise in the Agreement or the present GTC. In this regard, the Company shall not be liable for any damage incurred as a result of unauthorised access to electronic communications between the Company and the Customer by third parties.
5. LIABILITY FOR DEFECTS, WARRANTY
5.1. The Company gives a 12-month warranty for the Goods starting on the date of acceptance of the Goods by the Customer. The warranty shall cover defects in the materials and workmanship of the Goods discovered by the Customer during the guarantee period. For the avoidance of doubt, the Parties declare that § 1921, § 1922 and § 2112 of Act No. 89/2012 Coll., the Civil Code (hereinafter the “Civil Code”) shall not apply to the Agreement.
5.2. The warranty shall be granted to the Customer only on condition that the Goods are used in accordance with the instructions for use and that they are not used in an incompetent or improper manner. The Customer shall not be eligible for a warranty if the Customer fails to fulfil its obligations to the Company in a due manner.
5.3. The warranty shall not cover damage resulting from:
a) improper installation, handling, operation or negligent care of the Goods;
b) wear and tear caused by normal use of the Goods or mechanical damage to the Goods;
c) electrical surges (visibly burned components or printed circuits) with the exception of standard deviations;
d) the Goods or a part thereof being damaged by a computer virus;
e) the use of illegal software or software for which the Customer is unable to prove its legal origin;
f) the use of unauthorised consumables;
g) excessive loading or use of the Goods under conditions that do not conform to the conditions described in the instructions for use in terms of humidity, temperature, dust levels, the chemical and mechanical impact of the environment where the Goods are normally used, or other use of the Goods;
h) the performance of an unqualified intervention, a change in the parameters of the Goods by the Customer or as a result of a repair of the Goods by the Customer;
i) force majeure;
j) damage which the Customer was informed about when buying the Goods.
6.1. More detailed conditions for complaints may be set out in the Refunds & Returns Policy of the Company available on the Company’s website.
6.2. Claims concerning Goods can be made in writing to the Company’s address provided to this end on the Company’s website.
6.3. The complaint must contain the following elements: (a) identification data of the Customer, including contact details of the Customer’s contact person; (b) specification of the Goods and a detailed description of the defect the claim relates to and its manifestations; (c) proof of purchase of the Goods; (d) the Goods, including all accessories.
6.4. If, for some Goods, a special list of authorised warranty centres is specified, the Customer shall exercise its right to repairs under the warranty in these specialised service shops.
6.5. The Customer shall be obliged to provide all the assistance to the Company that is necessary to remedy the defects in the Goods.
6.6. The Customer shall be obliged to send the Goods to the Company at its own expense and responsibility. The Company shall not be obliged to accept Goods for the complaint procedure which are not properly packed and handed over with the required components and accessories and that do not include the original accompanying documentation.
6.7. A properly filed complaint will be dealt with in accordance with the present GTC and the Civil Code.
6.8. Upon acceptance of the Goods that are the subject of the claim, the Company shall issue a receipt to the Customer indicating the date when the right to complain was exercised.
6.9. The Parties agree that if the Goods are defective, the Customer cannot withdraw from the agreement or demand a price discount if the Company is ready to: (a) remedy such a defect or replace the Goods with non-defective Goods, (b) without undue delay, begins to work towards remedying the defects or replacing the Goods with non-defective Goods and does so within a reasonable time.
6.10. The Company shall inform the Customer about how the complaint was dealt with through the Customer’s account available on the Company’s web interface, by email or in writing. If the Company accepts the complaint and decides to replace the Goods with a new item of the same type of Goods, it provides the new Goods to the Customer after the complaint has been dealt with, together with a written confirmation indicating how and when the complaint was dealt with. If the Company decides to repair the Goods, it delivers the repaired Goods to the Customer together with a written confirmation of the repair of the Goods and its duration. If the Goods were shipped in connection with a complaint procedure by a delivery service, they shall be returned in this way to the Customer’s address after the settlement of a claim.
6.11. If the Customer does not accept the Goods subject to the completed complaint proceedings within 30 days following the termination of the complaint proceedings, the Customer expressly agrees to the Company disposing of the Goods in an eco-friendly manner within 30 days following the end of the period for the acceptance of the Goods, at the Company’s expense.
7. COMPENSATION FOR LOSS OR DAMAGE
7.1. The Company shall not be liable for any loss or damage that resulted from a breach of the Customer’s obligations under the Agreement or the present GTC, or if the Customer contributed to the loss or damage that was suffered by its wrongful act.
7.2. The Company shall not be liable for any loss or damage suffered as a result of circumstances excluding liability under the relevant provisions of the Civil Code. A fault in a means of remote communication (e.g. Internet connection) used by the Customer or the Company and/or a failure of any technical device not caused by the Company shall also be considered by the Parties as a circumstance excluding the liability of the Company.
7.3. The Company shall not be liable for lost profits of the Customer.
7.4. The Company is not liable for damage that does not arise directly in connection with the breach of a legal obligation on the part of the Company.
7.5. The Company shall be liable for damage up to the limitof the amount of the price of the Goods without VAT which the Customer paid the Company for its purchase.
7.6. The Company shall not be liable for late delivery of the Product or its non-delivery for reasons that are objectively beyond its control.
7.7. The Company shall not be liable for the functionality of any software not produced by the Company or not approved by the Company for use in the Product.
8. FINAL PROVISIONS
8.1. In the event that any provision of the present GTC is or becomes invalid, unenforceable or null, such invalidity, unenforceability or nullity will not cause the invalidity, unenforceability or nullity of the remaining provisions of the GTC.
8.2. The present GTC come into force and take effect on the date of their issuance.
8.3. All information relating to the Products, GTC or the Price List will be made available to Customers at the contact points of the Company or its partners (an up-to-date list of contact points shall always be posted on the Company’s website), on the Company’s website or in a different appropriate manner.
8.4. The Parties agree that the GTC may be unilaterally amended or supplemented by the Company, in particular as a result of changes in legislation or technological changes affecting, for example, the communication with Customers and/or the manner of concluding, amending and terminating the Agreement, but also as a result of extensions of, or changes to, Products provided by the Company. The Company shall also be entitled to change the GTC unilaterally if the market conditions or the terms and conditions of trading partners with whom the Company collaborates (e.g. modified delivery conditions of shipping companies, etc.) and whose services the Company uses to render services to the Customer change.
8.5. The Customer shall be informed about the amendment and/or supplementation of the GTC on the website www.dotykacka.cz, through the customer account of the Customer accessible on the Company’s web interface and/or by email, if an email address was provided when the Agreement was signed, at least seven days before the date of the coming into effect of the amendment or supplementation of the GTC. This amendment or supplementation shall not affect the rights and obligations of the Parties that arose during the period of validity of the previous version of the GTC. The Customer shall have the right to reject the amendment or supplementation of the GTC and, on the basis of this reason, to terminate the Agreement in writing before the date of the coming into effect of the revised and/or supplemented GTC at the latest. In the event that the Customer does not exercise this right before the date of the coming into effect of the revised and/or supplemented GTC, it shall be assumed that it expressed its consent to the content of the amended or supplemented GTC.
8.6. The Customer acknowledges and agrees that the Company shall be entitled to communicate amendments to the GTC made in favour of the Customer in a manner set forth in Art. 8.5 of the present GTC even within a time limit shorter than the time limit specified in said article and that amendments that are not to the detriment of the Customer shall not give rise to the right to terminate the Agreement pursuant to Art. 8.5 of these GTC.
8.7. The rights and obligations of Parties not governed by the present GTC shall be governed by the relevant provisions of the law, in particular by the applicable provisions of the Civil Code.
8.8. The Parties agree that all communication between them shall be in the Czech language.
8.9. In accordance with § 89a of the Code of Civil Procedure, the Parties agree that the District Court for Prague 1 or the Prague Municipal Court, if the regional court is the competent court of first instance, shall be locally competent for any litigation of disputes arising under or in connection with this Agreement, and that these disputes shall be settled exclusively under the law of the Czech Republic.
8.10. The Customer agrees that the Company validates the Customer’s ability to fulfil its obligations.
8.11. The Customer grants its consent to the Company sending information relating, directly or indirectly, to Products or the provision thereof, both in written and electronic form. The Customer’s consent may be cancelled by the Customer in writing; the consent must be delivered to the address of the Company provided for this purpose on the Company’s website.
8.12. By the conclusion of the Agreement, the Customer grants its explicit consent to details about its person being given for reference purposes in reference materials and on the reference sheet of the Company, which can be further used in advertising materials. The details published in the reference materials and on the reference sheet shall mean, in particular, the trade name and, where appropriate, also the trade mark or the name that the Customer uses for business purposes, the logo, the company ID, the scope of its business, its place of business, the location of the business premises or other publicly available information about the Customer and the type of Products used; all these details shall be shown in these materials of the Company free of charge. The Customer shall be entitled to withdraw its consent by writing to the registered office of the Company at any time.
8.13. The Parties exclude the application of the provisions of § 557 of the Civil Code to the rights and obligations arising from the Agreement.
8.14. Pursuant to § 558(2) of the Civil Code, the Parties exclude the possibility that, beyond the scope of the express provisions of the Agreement, any of the rights and obligations are drawn from practice established by them or from generallyaccepted commercial practices relating to the subject matter hereof.
8.15. Pursuant to § 630(1) of the Civil Code, the Parties agree to a limitation period for the rights arising from the Agreement for the benefit of the Company of ten (10) years from the day when the right could be exercised for the first time.
8.16. The Customer agrees that, pursuant to § 1765(2) of the Civil Code, it assumes the risk of a change in circumstances.
8.17. The Parties exclude the application of the provisions of § 2119 of the Civil Code.
8.18. For the avoidance of doubt, the Parties declare that they conclude the Agreement in the conduct of their business as entrepreneurs and hence the provisions of § 1793 of the Civil Code, § 1796 of the Civil Code, § 1799 of the Civil Code and § 1800 of the Civil Code shall not apply to the Agreement.
8.19. Pursuant to § 1895 of the Civil Code, the Parties agree that any rights or obligations under the Agreement or the Agreement in its entirety can be transferred or assigned to a third party by the Company, provided that the Customer expresses its prior consent in accordance with § 1897(1) of the Civil Code. The Customer can assign or transfer any of its rights or obligations under the Agreement or the Agreement in its entirety to a third party only with the prior written consent of the Company.
8.20. The Company is entitled to unilaterally set off all claims against the Customer, including non-mature claims.
8.21. If the Company fails to exercise any of its rights arising from the Agreement or it exercises only a part thereof or with a delay, this shall not have the effect of a waiver of such a right, and any partial exercise of such a right shall not prevent its other or further exercise or the exercise of any other right, unless otherwise provided in applicable legal regulations.