General Terms and Conditions
in accordance with the provisions of Section 1751(1) of Act No. 89/2012 Coll., the Civil Code, as amended
(hereinafter referred to as the “Civil Code”)
1. Introduction
1.1
These general terms and conditions (hereinafter referred to as “terms and conditions”) of ARTEX informační systémy spol. s r.o., registered in the Commercial Register maintained by the Municipal Court in Prague, Section C, File 56335, ID No.: 256 31 047, with its registered office at Štefánikova 248/32, 150 00 Prague 5 (hereinafter referred to as the “Contractor”) apply to all contracts for work (hereinafter referred to as “Contracts” or “Contract”) concluded by the Contractor with its customers (referred to in the Contracts as the “Customer” or “Customers”).
1.2
Contractor’s contact details:
a) mailing address: Štefánikova 248/32, 150 00 Prague 5
b) telephone: +420 257 325 086
c) e-mail: info@artex-is.cz
d) bank details, account number: 1276703/5500, held with Raiffeisenbank (hereinafter referred to as the “Contractor’s account”).
1.3
The provisions of the Terms and Conditions are an integral part of each contract.
1.4
The Contractor may unilaterally amend or supplement the wording of the Terms and Conditions. The amended wording of the Terms and Conditions shall become valid and effective on the date of its publication on the website.
2. Conclusion of the Agreement
2.1
The contractual relationship between the Contractor and the customer, the subject of which is the implementation of the Microsoft Dynamics 365 Business Central system (hereinafter referred to as the “Work”), the detailed specifications of which are contained in the Agreement (hereinafter referred to as the “Contractual Relationship”), is concluded by the signing of a written Agreement by both Contracting Parties. These Terms and Conditions are also part of the Contract.
2.2
The Contracting Parties and the basic provisions of the Contractual Relationship are defined in the relevant Contract. In the event of a conflict between the provisions of the Contract and the GTC, the provisions of the Contract shall prevail.
3. Place of performance and travel expenses
3.1
The place of performance of the Work is the place specified in the Contract.
3.2
The price of the Work according to Article 4 of the Terms and Conditions does not include the Contractor’s travel expenses to the place of performance. The Customer undertakes to pay the Contractor travel expenses in the amount of CZK 10/km.
4. Price of the Work and Payment Terms
4.1
The price of the Work does not include license fees (with the exception of Article 12 of the Terms and Conditions) and software usage fees.
4.2
The price for the Work does not include any additional work. The categories of additional work are listed in Article 5 of the Terms and Conditions. In the case of additional work:
a) category A, if its performance is necessary for the continuation of the Work, the Contracting Party that identifies this need is obliged to inform the other Contracting Party immediately. In such a case, the Contractor is obliged to submit an offer to the customer for the performance of such additional work, in written or electronic form. If the customer does not respond to the offer in the same form within three (3) working days, the offer is considered accepted. If the customer does not accept the offer, they are obliged to ensure that the additional work is performed by a third party within a reasonable time and in a quality corresponding to the quality of the Work. The deadlines for the performance of the Work shall be extended by the period from the discovery of the need to perform such additional work until its delivery.
b) category B, the Parties shall agree on the scope and price of the additional work by agreeing in writing or in electronic form on the content and scope of such additional work. The Contractor shall not be obliged to respond to the customer’s request to perform such additional work and to perform such additional work. The deadlines for the performance of the Work shall not be extended by the period of performance of such additional work. The price for additional work is payable on the basis of an invoice with a maturity of 14 days from its issue.
4.3
The contracting parties may agree on adjustments to the prices of individual activities, including the deadline for completion, also by means of email communication between authorized persons without the need for an electronic signature.
4.4
The estimate of the total number of hours or man-days required to complete the Work, as presented in the offer or at the customer’s request, is only indicative and does not bind the Contractor in any way.
4.5
The Contractor shall issue an invoice with all the necessary details, payable within fourteen days of the date of issue to the customer. If the invoice does not contain the required details or if the information is not correct, the customer is entitled to return it to the Contractor for completion. In such a case, the payment period shall be suspended and a new payment period shall commence upon delivery of the corrected invoice. Invoices shall be paid by bank transfer to the Contractor’s account specified on the invoice.
4.6
The Customer acknowledges that the Work consists of individual partial performances that are interdependent (i.e., the next step cannot be performed without completing the previous step), each of which is separately assessable. The Contractor is therefore entitled to payment of the relevant part of the price upon completion of the corresponding part of the Work in accordance with the agreed phases of the Work.
4.7
In the event of the Customer’s delay in paying any amount due under the Contractual Relationship, the Contractor shall be entitled, without prejudice to any further claims, to suspend work on the performance of the Work (in whole or in part) until such amount is paid, provided that the Customer is notified of this possibility in writing at least seven (7) days before the work is suspended. The deadlines for the performance of the Work shall be automatically extended by the period during which the Customer was in default with payment or cooperation pursuant to this paragraph.
5. Additional work
5.1
Additional work is not included in the price of the Work and is divided into two categories:
a) Category A: Additional work that is critical and has a significant impact on the functionality of the functionality or part thereof, and the system cannot be launched without this additional work.
b) Category B: Additional work that is non-critical and does not have a significant impact on the functionality or part thereof, and the system can be launched without this additional work, provided that it will be implemented in the system later, with the deadline to be determined by agreement between both parties. The contractor is not obliged to respond to an offer of category B additional work. Training of employees and persons authorized by the customer is also considered category B additional work.
6. Cooperation and mutual communication
6.1
The Contracting Parties are obliged to cooperate with each other and provide each other with all information necessary for the proper performance of their obligations. The Contracting Parties are obliged to inform each other of all facts that are or may be important for the proper performance of the Agreement.
6.2
All notifications between the Contracting Parties relating to the Contract or to be made on the basis of the Contract, in particular in writing, may also be made in the form of email communication between authorized persons of the Contracting Parties without the need for an electronic signature. Notifications shall be deemed delivered on the third day after their demonstrable dispatch.
6.3
The Customer undertakes to provide the Contractor with the cooperation necessary for the implementation of the Work. Unless otherwise agreed by the Contracting Parties, the Customer is obliged to provide the Contractor with cooperation within three (3) working days of the Contractor submitting the request.
6.4
The Customer shall not be entitled to any compensation from the Contractor for costs related to the provision of cooperation as agreed, in particular, the Customer shall not be entitled to compensation for any downtime of employees, restrictions on the functioning of the user IT environment, etc.
6.5
The Contractor shall not be liable for any unauthorized use of the software by the Customer; if it discovers such use, it shall be obliged to notify the Customer thereof. The customer is obliged to obtain the consent of all holders of industrial or other intellectual property rights for the use and distribution of industrial or intellectual property that will be necessary for the customer to perform and subsequently use the Work. The contractor is not liable for any damage caused to third parties by the customer’s breach of this obligation.
6.6
In the event of the customer’s delay in providing the necessary cooperation in a proper and timely manner, the Contractor shall be entitled to a contractual penalty of CZK 3,000 per day, payable upon request within 10 days, for each day, even if only partially commenced, of delay in providing the necessary cooperation by the customer. The contractual penalty shall not affect the Contractor’s right to compensation for damages.
7. Changes to the Work during performance
7.1
Either Contracting Party is entitled to propose changes to the Work before its completion. Proposed changes to the Work shall be accepted upon agreement of both Contracting Parties, in writing in the form of a mutually signed amendment to the Contract.
7.2
The Contractor shall not be obliged to make any changes to the Work until such changes have been confirmed in writing and until the relevant changes concerning the deadline and price of performance, delivery dates, or relevant documentation of the Work have been agreed in writing.
8. Categories of acceptance reservations
8.1
A Category A defect is a serious defect with the highest priority that has a critical impact on the functionality or part thereof, as well as a defect that prevents the customer from using
the functionality or part thereof or causes/may cause serious operational problems. A Category A defect is also a missing part of the functionality.
8.2
A Category B defect is a defect that does not fall into Category A due to its nature. The functionality or part thereof has limitations or is partially non-functional, but this non-functionality does not interfere with the essential activities performed during normal use of the functionality. This is a removable defect that causes problems in the use and operation of the functionality or part thereof by the customer, but allows normal operation without a significant negative impact on the activity. It also means easily removable defects with minimal impact on functionality or appearance.
9. Handover and acceptance of the Work
9.1
The Work shall be handed over to the Customer upon request by the Contractor (an email shall suffice). The Customer is obliged to accept the Work within 7 working days, but not before the completion of the acceptance procedure. This provision does not prevent the Customer from accepting the Work with reservations regarding category B defects pursuant to Article 8.2 of these Terms and Conditions.
9.2
The Contracting Parties shall draw up and sign an acceptance protocol or other document confirming the handover of the Work.
9.3
The handover and acceptance of the Work shall take place through an acceptance procedure, which includes a comparison of the actual characteristics of the Work with its parameters specified in the Contract, as amended by any subsequent changes agreed upon by the Contracting Parties.
9.4
The acceptance procedure will include acceptance tests/protocols. Unless otherwise agreed by the Contracting Parties, the Contractor will prepare the specifications for the acceptance tests. After completion of each acceptance test, a written acceptance letter shall be drawn up stating whether the functionality in question has been accepted, rejected, or accepted with reservations by the customer. If the functionality has no defects or unfinished parts, the customer is obliged to accept the given part of the Work and sign the acceptance sheet with the result accepted. If the functionality has defects or unfinished work, the result will not be accepted, or will be accepted with reservations (i.e., without category A defects), and the customer will specify the reported defects and unfinished work in the acceptance letter and their classification into the category of defects according to Article 7 of these Terms and Conditions. In such a case, the Contractor undertakes to remove the defects and unfinished work specified in the acceptance protocol as soon as possible, no later than thirty (30) days from the submission of the acceptance letter confirmed by the customer with a proper specification of the reported defects.
9.5
If the customer submits an acceptance form to the Contractor stating that the work is not accepted, even though the customer does not describe any category A defects, the result of the acceptance procedure shall be deemed to be accepted or accepted with reservations, provided that the defects complained of correspond in nature to category B defects. The Contractor shall inform the customer of this fact without undue delay. If the customer does not submit the relevant acceptance form to the Contractor within the above-mentioned deadline, the result of the acceptance procedure shall be deemed to be accepted.
9.6
The Customer shall submit the individual acceptance sheets to the Contractor within three (3) working days of the Contractor’s request to perform the acceptance test. After this period, the customer shall only be entitled to complain to the Contractor about defects or unfinished work that the customer has already reported to the Contractor within this period but which the Contractor has not remedied properly and in a timely manner.
9.7
After acceptance testing, the Contractor shall hand over the Work to the customer for trial (pilot) operation. Trial operation is operation with live data in the customer’s normal operation without the possibility of corrections or modifications in another information system. This trial operation shall run for a period of 30 days.
9.8
If, according to the acceptance tests, the Work meets the parameters of the Work specified in the Contract (including changes agreed upon by the Contracting Parties), the Contractor undertakes to hand over the Work to the Customer on the day following the completion of the acceptance tests. The Customer undertakes to accept the Work on this date, even if the Work contains category B defects (according to Article 8.2 of these Terms and Conditions). If the Customer refuses to accept the Work on this date, even though all conditions for this have been met, the Work shall be deemed accepted.
9.9
The Work shall also be deemed accepted and delivered if the customer uses it without signing the acceptance protocol.
9.10
The customer acquires the Work on the date of full payment of the price according to the Contract.
9.11
If the creation of a computer program (software) by the Contractor is part of the Work, the provision of its source texts is part of the performance where technically and licencially possible. The Customer becomes the owner of the license rights to all additionally developed modules created by the Contractor for the Customer’s needs, where this is technically and license-wise possible (see Article 12 of the Terms and Conditions for more details).
10. Handover and acceptance of documents
10.1
Documents prepared by the Contractor on the basis of the Contractual Relationship and provided to the customer as part of the Work shall first be submitted to the customer in the form of a draft for review. Such documents include, in particular, the terms and conditions of use of the software.
10.2
The Customer is entitled to submit their comments on the draft to the Contractor in writing within ten working days of delivery of the relevant draft. If possible, the Contractor shall amend the relevant draft in accordance with the Customer’s comments and deliver the final version of the documents to the Customer.
10.3
The documents shall be deemed accepted upon delivery of their final version to the customer.
10.4
If the customer does not submit comments within the above-mentioned period, it shall be deemed that they agree with the submitted document and the document shall be deemed duly accepted.
11. Use of the Work, Import Regulations
11.1
On the date of full payment of the price under the Contract, the Customer acquires ownership rights to the items that are to become its property under the Contractual Relationship, and if the Work includes software, the Customer also acquires copyright to its use at that moment, i.e., the right to use such software as a whole and its individual parts.
11.2
Use of the Work means the moment when the customer and its users can use the Work without obvious defects and unfinished parts that would prevent them from using the Work.
11.3
The customer undertakes to comply with the copyright and license terms of the owner and provider of the software (Microsoft Corporation).
11.4
Customer modifications (GAPs) specified in the Agreement, i.e., Customer Modifications, shall be provided to the customer, including source codes. In the case of the Artex AddOn solution, the customer has the right to non-exclusive use without the provision of source codes.
11.5
The Contractor undertakes to obtain all necessary import and export licenses for individual parts of the Work at its own expense.
11.6
After the work is handed over for live operation, the customer undertakes to order support, maintenance, or development services for the Work from the Contractor at a price to be agreed upon by the Contracting Parties according to the Contractor’s valid price list.
12. Copyright to the Work
12.1
The Contracting Parties agree that the Contractor shall grant the Customer a non-exclusive license, unlimited in time, territory, and quantity, to all copyrighted works created by the Contractor within the scope of the Contractual Relationship (if such works are created). The Customer’s right to use these copyrighted works arises upon full payment of the price pursuant to Article 3 of these Terms and Conditions, and the Contracting Parties agree that the remuneration for the license granted is already included in the price for the relevant services.
12.2
The Customer is not obliged to use the license.
12.3
The Contractor does not grant consent for the Customer to sublicense its rights under this article of the Terms and Conditions to other entities.
13. Liability for defects
13.1
The Customer may notify the Contractor of any hidden defect that manifests itself in the Work no later than six months after acceptance of the Work.
13.2
A defect is considered to be any functionality of the Work that is not in accordance with the described assignment.
13.3
The Customer is obliged to report defects in the Work to the Contractor immediately by sending a request by e-mail or via the hotline. In such a case, the Contractor shall investigate the reported defect in the Work as soon as possible. If the defect is covered by the Contractor’s liability for defects and does not prevent the Customer from using the software, the Contractor shall remove it as soon as possible. If such a defect prevents the use of the software, the Contractor shall begin working on removing the defect within twenty-four hours of the date of notification of such a defect by the Customer to the Contractor. The Customer shall not be entitled to request the performance of replacement work.
13.4
Defects in the Work shall be reported via the Contractor’s helpdesk by the customer creating a request that is clearly marked as a defect report (e.g., by stating “COMPLAINT” in the subject line of the message).
13.5
The customer is not entitled to rights arising from defective performance if they caused the defect in the Work themselves. In particular, the Contractor is not liable for the inability to complete the Work or for defects in the Work caused by inappropriate instructions or orders from the customer or the inappropriate nature of the items and materials provided by the customer for the performance of the Work.
14. Authorized Persons
14.1
All communication between the Contracting Parties shall be conducted through the authorized persons specified in the Agreement (hereinafter referred to as “Authorized Persons”).
14.2
An Authorized Person is authorized to submit or approve acceptance reports on behalf of a Party, prepare amendments to the Agreement for their written approval by persons authorized to bind the Parties (statutory bodies), and hand over or take over the Work.
14.3
The Contracting Parties are entitled to unilaterally change the Authorized Persons on their side, but they are obliged to notify the other Contracting Party of such a change in accordance with Article 5.2. of these Terms and Conditions. The statutory body of the Contracting Party is also considered an Authorized Person.
15. Subcontractors
15.1
The Contractor is entitled to entrust the performance of part of the Work to a third party (subcontractor), but in this case the Contractor is responsible for the subcontractor’s activities as if it were performing the Work itself.
15.2
The Provider is obliged to ensure in its subcontractor agreements that all obligations arising for the Contractor from the Contractual Relationship are fulfilled.
15.3
Disclosure of confidential information obtained by the Contractor from the Customer in the performance of this Contractual Relationship to a subcontractor to the extent necessary shall not be considered a breach of information protection pursuant to Article 16 of the Terms and Conditions.
16. Compensation for damages
16.1
Each of the Contracting Parties shall be liable for damages caused within the framework of applicable legal regulations and this Contractual Relationship. Both Contracting Parties undertake to make every effort to prevent damages and minimize any damages incurred.
16.2
The Contractor shall notify the Customer of any factually incorrect or otherwise erroneous specifications provided by the Customer.
16.3
Neither Party shall be liable for failure to fulfill its obligations as a result of a delay on the part of the other Party or as a result of external intervention (force majeure).
16.4
The Contracting Parties undertake to notify the other Contracting Party without undue delay of any circumstances arising that exclude liability and prevent the proper performance of the Contractual Relationship. The Contracting Parties undertake to make every effort to avert and overcome circumstances that exclude liability.
16.5
The Contractor shall be liable for proven damage incurred by the customer as a result of a breach of the Contractor’s obligations under this Contractual Relationship, but not for lost profits or profits normally achieved in fair business dealings under conditions similar to those of this Contractual Relationship within the scope of the customer’s business. The amount of such compensation for damages for which the Contractor would be liable is limited to a maximum of 50% of the price of the Work under the Contract.
17. Protection of information
17.1
Neither Party may disclose to a third party any confidential information obtained from the other Party in the performance of this Contractual Relationship.
17.2
The protection of information does not apply in cases where: the Contracting Party proves that it had this information at its disposal before the date of disclosure by the other party and that it did not acquire it in violation of the law; or the Contracting Party can obtain this information free of charge from a third party who is not restricted in its disclosure; or the Contracting Party receives written consent from the disclosing party to disclose the information; or the disclosure of information is required by law or a binding decision of a competent authority.
17.3
For the purposes of this Contractual Relationship, the Contracting Parties consider confidential all information provided to each other in oral or written form, in particular information that the Contracting Parties have learned in connection with this Contractual Relationship, as well as know-how, which means all commercial, manufacturing, technical, or economic knowledge related to the activities of the Contracting Party, which has actual or at least potential value and which is not commonly available in the relevant business circles and is to be kept confidential. Confidential information within the framework of this Contractual Relationship also includes software, diagnostics, documentation, including manuals, and all other information that is designated in writing as confidential information of the Contractor, its license providers, or the customer.
17.4
The Contracting Parties undertake not to copy confidential information provided by the other Contracting Party in paper form, either in whole or in part; this obligation shall not apply in cases where it is necessary to correct, generate, or modify confidential information for its legitimate use within the meaning of this Contractual Relationship.
The Contracting Parties shall mark each copy, including its storage medium, with all markings specified in the document containing confidential information provided by the other Contracting Party.
17.5
Both Contracting Parties undertake to treat confidential information provided to them by the other Contracting Party or otherwise obtained in connection with the performance of this Contractual Relationship as a trade secret, in particular to keep it secret and to take all contractual and technical measures to prevent its misuse or disclosure.
17.6
At the customer’s request, the Contractor shall immediately return to the customer or destroy the customer’s confidential information that is no longer necessary for the purposes of this Contractual Relationship.secret and to take all contractual and technical measures to prevent its misuse or disclosure.
17.7
The contracting parties undertake to instruct their employees and representatives, their members and subcontractors who have access to confidential information pursuant to this paragraph about their obligation to keep confidential information secret.
17.8
If the information provided by the customer, which is necessary for the performance of this Contractual Relationship, contains data subject to special protection under the GDPR or Act No. 110/2019 Coll., on the processing of personal data, as amended, the customer is obliged to ensure compliance with all reporting obligations required by the aforementioned Act and obtain the prescribed consents of the subjects of personal data transferred for processing. The customer cannot be released from this obligation.
17.9
The obligation to keep confidential information secret referred to in this article binds the Contracting Parties for the duration of this Contractual Relationship and for a period of two years after its termination.
17.10
A Contracting Party that breaches its obligations under this Contractual Relationship regarding the protection of confidential information shall be obliged to pay the other Contracting Party a contractual penalty of CZK 100,000 for each non-insignificant breach of such obligation, within fifteen days of the date of delivery of the invoice issued for its payment. This shall not affect or limit the right to compensation for damages incurred.
17.11
No provision of these Terms and Conditions or the Contract shall prevent or restrict the Contractor from commercially exploiting any technical knowledge, skills, or experience of a general nature acquired in the performance of this Contractual Relationship.
17.12
The Contractor is entitled to use the name (business name) of the customer and samples from the Work, including its characteristics, as long as this does not conflict with Article 14 of these Terms and Conditions, as a reference for its own promotional purposes, even before it is made available to the public. If technically feasible, the Contractor has the right to place its authorship mark, or copyright notice, and its graphic logo in the form of an icon on each Work, which will also serve as a link to its website.
18. Personal Data Protection
18.1
We fulfill our obligation to inform customers in accordance with Article 13 of Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) relating to the processing of the client’s personal data for the purposes of performing the Contractual Relationship, for the purposes of negotiating the Contract, and for the purposes of fulfilling the Contractor’s public law obligations, the Contractor fulfills through a special document at www.artex-is.cz.
19. Other provisions
19.1
The Customer is entitled to withdraw from the Contract if the Contractor is more than thirty days late with the delivery of the Work and fails to remedy the situation within five working days of receiving notification of such delay from the Customer.
19.2
The Contractor is entitled to withdraw from the Contract if the Customer is in default with the payment of the Contractor’s invoices and this default lasts for more than thirty days, and is also entitled to withdraw from the Contract if the customer is in default with the fulfillment of its obligations under the Contractual Relationship for more than thirty days and does not remedy the situation within five working days of delivery of the Contractor’s notification of such default, or the Contractor is entitled to withdraw from the Contract if the customer becomes insolvent, enforcement, liquidation, or becomes an unreliable VAT payer. The customer undertakes to pay the contractor a contractual penalty for any delay in fulfilling their payment obligations to the contractor under the contractual relationship, amounting to 1% of the amount owed for each day of delay in payment.
19.3
Either Party is entitled to terminate the Contract with a thirty-day notice period. In such a case, the Customer undertakes to pay the Contractor the price for the part of the Work performed up to that point, as well as all other proven costs incurred by the Contractor in connection with the implementation and preparation of the Work.
Withdrawal from the Contract shall not affect the right to payment of a contractual penalty.
The Contracting Parties undertake to make every effort to resolve any mutual disputes that may arise.
19.4
Withdrawal from the Agreement shall not affect the right to payment of a contractual penalty.
19.5
The Contracting Parties undertake to make every effort to resolve any mutual disputes arising within the framework of this Contractual Relationship or in connection with it, in particular through negotiations between contact persons or authorized representatives.
20. Final provisions
20.1
The Agreement may only be amended by written agreement of the Contracting Parties in the form of numbered amendments to the Agreement, signed by authorized representatives of both Contracting Parties, unless otherwise specified in these Terms and Conditions or the Agreement. In the event of personal negotiations between representatives of the Contracting Parties, the Contractor shall have the right to draw up minutes of such negotiations. If the customer agrees to these minutes or does not comment on them within two working days, the content of these minutes shall be binding on the Contracting Parties and may amend the Agreement.
20.2
The Contracting Parties are obliged to inform the other Contracting Party of any changes concerning the company, such as a change of address or statutory body, within 3 working days at the latest.
20.3
The contractual relationship is governed by Czech law, in particular Act No. 89/2012 Coll.
the Civil Code. Any disputes arising from this contractual relationship shall be resolved by the contracting parties
primarily by amicable means. The contracting parties agree that the local court with jurisdiction over disputes arising from this contractual relationship that the contracting parties have been unable to resolve amicably shall be the general court with jurisdiction over the Contractor’s registered office.
20.4
If any provision of the Terms and Conditions is or becomes invalid or ineffective, it shall be replaced by a provision whose meaning is as close as possible to the invalid provision. The invalidity or ineffectiveness of one provision shall not affect the validity of the other provisions.