Terms & Conditions

These General Terms and Conditions of Petr Tesař govern the provision of IT services by this company. They supplement the IT Services Agreement concluded between Petr Tesař (the “Supplier”) and the customer (the “Agreement”). These terms define the relationship between the Supplier and the customer. Contractual relations between the parties are governed by the Czech Civil Code (Act No. 89/2012 Coll.) and the Copyright Act (Act No. 121/2000 Coll.).

1. Rights and obligations of the parties

1.1. The Customer undertakes to provide the Supplier with complete, true and timely information necessary for the Supplier to duly perform its obligations.

1.2. If the services under this Agreement involve processing personal data which, under applicable law, requires the prior consent of any third party or data subject, the Customer shall obtain such qualified and informed consent at its own expense so that the processing complies with the law, including Regulation (EU) 2016/679 of the European Parliament and of the Council (GDPR). Where personal data is processed in the course of providing IT services, the Customer acts as the data controller and the Supplier as the data processor. Both controller and processor shall comply with the relevant provisions of Regulation (EU) 2016/679 (GDPR).

1.3. The Customer undertakes to provide the Supplier with the technical and organisational conditions arising from this Agreement or agreed by authorised persons.

1.4. The Customer further undertakes to hand over to the Supplier the documents and information needed to install and operate the IT services.

1.5. The Customer undertakes to give the Supplier access to software and to the Customer’s automated and non-automated information system to the extent necessary for the proper performance of this Agreement.

1.6. The Supplier undertakes to inform the Customer without undue delay of all facts relevant to the performance of the parties’ obligations, in particular facts concerning the provision of services under this Agreement.

1.7. The Supplier undertakes to perform its obligations under this Agreement in accordance with the relevant standards and based on the latest research and development in the field.

1.8. The Supplier undertakes to resolve any IT service outages no later than the following business day.

1.9. The Supplier may temporarily suspend access to an IT service if the Customer is more than 30 days late in paying for that service, until the outstanding amount is paid.

1.10. The Customer undertakes not to engage in any activity that would disrupt the operation of the Supplier’s data centre or the provision of IT services to the Supplier’s other customers.

1.11. The Customer undertakes not to engage in any activity aimed at breaching the Supplier’s data centre in order to obtain information about the Supplier or other customers stored in the Supplier’s data centre, or to subsequently use such information.

2. Intellectual property and licensing

2.1. Ownership and reservation of rights. The Customer acknowledges and agrees that:

1. the products, including their documentation sets, and all information the Customer obtains directly or indirectly from the Supplier contain proprietary information of the Supplier, its licensors or other suppliers and are protected by the copyright law of the Czech Republic, other applicable copyright laws, other intellectual property laws and international treaties;
2. full ownership of and title to the products, documentation sets, information and all related intellectual property rights belong to the Supplier or its licensors;
3. the products are licensed, not sold, and ownership of individual copies of the products belongs to the Supplier or its licensors and in no event passes to the Customer;
4. the Supplier reserves all rights not expressly granted to the Customer.

2.2. Source code. Under this Agreement the Customer is not entitled to receive, view, use or otherwise access the source code of the products.

2.3. Reverse engineering. The Customer may not decode, disassemble, reverse-assemble, decompile or otherwise translate the products or create derivative works from them, unless expressly permitted by applicable law notwithstanding this restriction. Where the law permits the Customer any of the activities listed in the previous sentence, the Customer may exercise such right provided that it informs the Supplier in writing at least thirty (30) days before commencing such activity. The Customer may not use the products or documentation sets to develop functionally similar software.

2.4. The Customer may only use the agreed number of licences.

2.5. The Customer may not rent, lend, lease or otherwise directly or indirectly transfer or distribute the software products. The Customer may not allow any third party to access the software products.

2.6. The Supplier does not guarantee the correct operation of software products if they are run on an incorrectly configured computer or in an incorrectly configured computer network.

3. Confidentiality

3.1. The parties are aware that in performing this Agreement:

1. they may, intentionally or by omission, provide or disclose to each other information that will be considered confidential (“confidential information”),
2. their employees or representatives may gain access to the other party’s confidential information through the other party’s deliberate action or omission.

3.2. All confidential information remains the exclusive property of the disclosing party, and the receiving party shall make the same effort to keep it confidential and protect it as it would for its own confidential information. Except as necessary for the performance of this Agreement, both parties undertake not to acquaint themselves with the substance of the other party’s confidential information, not to duplicate it in any way, and not to pass it on to any third party or to their own employees and representatives other than those who need to know it to perform this Agreement. Both parties further undertake not to use the other party’s confidential information for any purpose other than the performance of this Agreement.

3.3. Unless the parties expressly agree otherwise, all information that is or could be part of a trade secret is deemed confidential, in particular data stored in the Supplier’s data centre, technical know-how, business or marketing information and any other information whose disclosure by the receiving party could cause damage to the disclosing party.

3.4. Notwithstanding the above, information is not considered confidential if it:

1. has become publicly known without intentional fault or omission of the receiving party,
2. was lawfully available to the receiving party before this Agreement was concluded, unless such information was subject to another confidentiality agreement previously concluded between the parties.

3.5. This article remains in force after this Agreement terminates for any reason and expires no earlier than one (1) year after the Agreement ceases to be effective.

3.6. It is not a breach of confidentiality under these terms to disclose that the Customer has concluded an IT Services Agreement, or the number of users of the IT services. This information is provided as part of the Supplier’s reporting to the authors and owners of the software products used – e.g. Microsoft.

4. Liability for damage

4.1. The parties are liable for damage caused within the limits of applicable law and to the extent set out in these terms. The parties undertake to make every effort to prevent damage and to minimise any damage incurred.

4.2. Neither party is liable for damage resulting from factually incorrect or otherwise faulty instructions received from the other party. Neither party is liable for delay caused by the other party’s delay in performing its obligations.

4.3. Neither party is liable for damage caused by the other party’s delay in its own performance.

4.4. Neither party is liable for delay caused by circumstances excluding liability (force majeure). Such a circumstance is an obstacle that arose independently of the obligated party’s will and prevents it from fulfilling its obligation, if it cannot reasonably be expected that the obligated party could have averted or overcome the obstacle or its consequences, or foreseen it at the time the obligation arose. An obstacle that arose only when the obligated party was already in delay, or that arose from its economic circumstances, does not exclude liability. The effects excluding liability last only as long as the obstacle persists.

4.5. The parties undertake to notify each other without undue delay of any circumstances excluding liability that prevent proper performance of this Agreement, and to make every effort to avert and overcome them.

4.6. The Supplier is not liable for damage caused by a mains power failure, loss of internet connectivity, a computer being switched off or reset, a computer virus infection, an attack from the internet or another network, a hardware (“HW”) failure or a software (“SW”) error.

4.7. The Supplier is not liable for damage caused by the following conduct of the Customer:

1. incorrect operation of HW and SW by users resulting in defects in the services provided under this Agreement,
2. failure of the Customer or users to comply with SW licence terms,
3. unauthorised or unprofessional interference by users with SW and HW managed by the Supplier,
4. insufficient protection or misuse of login names and passwords to the IT service by the Customer and users.

The Supplier is also not liable for defects caused by natural disasters or force majeure. For the purposes of this Agreement, users means the Customer’s employees or other persons who used the IT service.

4.8. The Supplier’s liability for defects consists of:

1. repairing or replacing the product or other material that does not meet the above warranties,
2. advising the Customer how to achieve the same functionality with the product, or
3. refunding the purchase price or fees paid.

4.9. In no event shall the Supplier, its licensors or its suppliers be liable to the Customer for lost profits, lost revenue, loss of goodwill or reputation, business interruption, costs associated with loss of or damage to data or documentation, costs of delay, or any indirect, incidental, special or consequential damages regardless of the nature of the claim, including in particular loss of use, unavailability of online services, non-delivery, or damage incurred by third parties, for any reason or on any legal basis, even if the Supplier was informed, knew or should have known of the possibility of such damages or claims.

4.10. The Customer acknowledges that the products are not fault-tolerant and were not designed, manufactured or intended for, and will not be used in, the development of weapons of mass destruction, or as online control systems in hazardous environments requiring fail-safe operation, such as nuclear facilities, aircraft navigation and communication systems, air traffic control, life-support medical devices or weapons systems, where product failure could directly cause death, injury or serious material or environmental damage. The Customer further acknowledges that the products cannot replace its professional judgement, and accordingly the Supplier, its licensors and suppliers are not liable for the Customer’s use of the products or for the results obtained. The products are intended solely to support the Customer’s business activities and not as a substitute for the Customer’s independent testing and verification of stress, safety, utility and other parameters.

4.11. If, notwithstanding articles 4.1–4.10 of these terms, the Supplier is held liable for damage arising from a breach, defect, error or non-conformity of a product, support services or other services or materials, whether in contract or in tort, and regardless of whether any remedy under this Agreement fails of its essential purpose, the Supplier’s total liability under this Agreement shall not exceed:

1. for one-off deliveries, the total price paid by the Customer for the defective product, service or material concerned,
2. for recurring services, four times the monthly invoiced price of the defective service as specified in the annex to the IT Services Agreement.

These terms allocate risk between the Supplier and the Customer, and the Supplier’s pricing reflects this allocation of risk and the limitation of liability set out here.

5. Final provisions

5.1. The contractual relationship between the Supplier and the Customer, as well as rights and obligations arising from or in connection with the Agreement, are governed by Act No. 89/2012 Coll., the Civil Code, as amended, and other laws of the Czech Republic.

5.2. In the event of a conflict between the Agreement and these terms, the Agreement prevails.

5.3. The Customer may withdraw from the Agreement in the event of a material breach of the Agreement and these terms consisting of the Supplier’s delay in performing its obligations for more than thirty (30) days, if the Supplier fails to remedy the situation within ten (10) days of written notice from the Customer.

5.4. The Supplier may withdraw from the Agreement in the event of a material breach of the Agreement and these terms by the Customer consisting of the Customer’s delay in performing its obligations for more than thirty (30) days, if the Customer fails to remedy the situation within ten (10) days of written notice from the Supplier.

5.5. If the Customer becomes insolvent or bankrupt, enters into a restructuring of its debts, is unable to pay its debts, enters into liquidation, or prevents the Supplier from fulfilling its obligations in a complaint procedure, the Supplier may terminate this Agreement with immediate effect by unilateral written withdrawal.

5.6. Withdrawal from the Agreement does not affect provisions on contractual penalties, default interest, confidentiality, or rights and obligations which by their nature are intended to survive withdrawal (in particular the obligation to pay for performance provided before withdrawal took effect). Upon termination of this Agreement for any reason, all rights and licences granted to the Customer also terminate with immediate effect. Further use of products with perpetual licences is governed by the licence terms supplied with those products. The Customer may no longer use the services provided.

5.7. If a ground for invalidity applies only to a certain provision of the Agreement or these General Terms and Conditions, only that provision is invalid, unless its nature, content or the circumstances in which it was agreed indicate that it cannot be separated from the rest of the Agreement and these terms.

5.8. The Agreement, including these General Terms and Conditions, constitutes the entire agreement between the parties on its subject matter. The Agreement may only be amended by a written agreement of the parties in the form of numbered amendments.