Terms and Conditions
1. INTRODUCTORY PROVISIONS
1.1. Before you begin using the Portal, please read these Terms and Conditions, the Data Processing Terms and other documents referred to herein (collectively, the "Terms"). By signing the order referring to the Terms and Conditions or by clicking the button to agree to the Terms and Conditions when this option is made available to you (for example, when registering for the Portal), you enter into an agreement with the Provider for the use of the Service (the "Agreement"), part of which are the Terms. If you do not agree to the Terms, you are not allowed to use the Service.
1.2. "Documentation" means documents describing the features of the Service, requirements for third party software required for the proper functioning of the Portal and instructions for installing and configuring plugins. The Documentation includes more detailed information regarding alternative channels (Viber, RCS and WhatsApp), including a link to the relevant terms and conditions for these platforms. The Documentation is available on the Portal, with additional sections available in the Helpdesk.
1.3. "Third-Party Materials" means products, services, documents and data that are not owned by the Provider, including open-source software. A list of Third-Party Materials is available in the Documentation.
1.4. "Provider" is company TOPefekt s.r.o., with registered seat in B. Němcové 767/13, Postal Code 78701 Šumperk, ID No.: 29444268, registered in the Commercial Register at the Regional Court in Ostrava under file No. C 53634.
1.5. "User" is the user of the service for receiving and processing the content of messages and sending them from third-party applications via API to the final recipients called BulkGate® (the "Service") offered via portal.bulkgate.com (the "Portal"). If the User uses the Service on behalf of a legal entity, then as a natural person he declares that he is authorized to bind the legal entity by the Agreement, and the word "User" also refers to this entity.
1.6. "User Content" means messages sent by the User through the Portal, electronic communications, data, instructions, materials and other content provided by the User or received by the Provider through the Service.
2. USE OF THE SERVICE
2.1. Use. By successfully completing user registration, Provider grants User a non-exclusive, non-transferable permission to use the Service in accordance with the Agreement and the Documentation. The authorization is limited to the duration of the Agreement. The User is obliged to use the Service exclusively for its own use and may not provide its username and password to the Service to a third party without the Provider's prior written consent.
2.2. Reservation of Rights. Provider does not grant User any license or other intellectual property right to any software or Third-Party Materials that are part of the Service. All rights to the Service belong and shall remain vested solely in Provider, and all rights in the Third-Party Materials belong to the respective providers of the Third-Party Materials. The User does not acquire any licenses or other rights except as expressly set forth in paragraph 2.1 or in the applicable third-party license terms. The Provider reserves the right to make changes to the Service as it deems necessary or useful to improve its quality, efficiency or performance or to comply with applicable law. Changes will also be made because of changes in technical parameters by mobile operators or another non-substitutable provider.
2.3. Suspension and Termination. Over and above the cases arising from the Agreement or the legislation, the Provider may suspend, terminate or refuse the User's access to the Service, without incurring any obligation or liability, for any reason whatsoever, even without giving any reason, particularly in the following cases:
2.3.1. the Provider receives an order from a mobile operator, a court or a public authority requiring it to do so, or if the Provider becomes aware that a mobile operator, a public authority or any other authority having legal jurisdiction has introduced a new, or modified an existing, law, rule, regulation, interpretation or decision which would render the Provider's performance of any part of the Agreement unlawful or otherwise illegal,
2.3.2. the User does not comply with the Agreement, violates legal regulations, uses the Service in excess of the rights granted or for a purpose not permitted by the Agreement, engages in fraudulent or illegal activities,
2.3.3. the User fails to pay any amount due to the Provider by the due date,
2.3.4. during the registration process, the User has not provided the email address of the company on whose behalf he/she is registering, or has provided a different email address than the official internet domain of the company (e.g. a generic domain of the yahoo.com email address), has provided a third-party phone number or other false information or information that raises doubts about its veracity and credibility,
2.3.5. the User has not responded to the Provider's request for completion and clarification of the information or has not been able to properly comply with the request, or
2.3.6. it is a User who has previously registered and whose account has been blocked.
3. USE RESTRICTIONS
3.1. Use Restrictions. User shall not use or permit any other person to access or use the Service to the extent not expressly permitted or even prohibited by the Agreement (or by the license terms of the Third-Party Materials). In particular, the User may not:
3.1.1. rent, sublicense, resell, assign, distribute, share or in any similar manner misuse the Service (including by allowing third parties to access the Service as guests instead of obtaining their own account), unless the User agrees otherwise with the Provider as part of participation in an affiliate, partner or white label program,
3.1.2. register a third party on the Portal without notifying the Provider in advance and at the same time providing the Provider with the User's authorization to do so,
3.1.3. use access to the Service, Documentation or confidential information of the Provider in order to create a competing product or service, reverse engineer the Service, copy, modify or customize the Service,
3.1.4. damage, disable, interfere with or otherwise disrupt the Service or the operation of the Service, hack the Service, bypass or breach the security of the Service, or access or use the Service other than through his/her own at the time valid credentials,
3.1.5. use the Service in a manner or for a purpose that violates intellectual property rights, other third-party rights or the law.
3.2. Sanctions. The Service is offered to Users who are not the target of a sanctions scheme and do not reside in a country from which access to the Service is prohibited under applicable sanctions or export control regulations. The User declares that he/she complies with these conditions. If he/she does not meet such conditions, he/she may not use the Service. Provider reserves the right to restrict the availability of the Service to any person, entity, geographic location or jurisdiction at any time.
3.3. Inspection. The Provider or a person authorized by the Provider may carry out an inspection or instruct a third party to carry out an inspection if the Provider has reasonable grounds to suspect a breach of the Agreement by the User. The User and its staff must cooperate with the Provider, provide the Provider with access to all relevant information and provide any copies of documents as requested.
4. USER CONTENT AND NOTIFICATIONS
4.1. Roles and procedures. The Provider shall treat User Content passively and neutrally. This means that the Provider does not monitor it in general, nor does the Provider actively search for facts or circumstances that would indicate its illegality. However, on its own initiative, the Provider may conduct voluntary investigations or take other measures to detect, identify, remove or disable access to illegal content. The Provider may also take necessary measures to ensure compliance with legal requirements, contractual terms and conditions, and orders of administrative authorities. However, the Provider shall not be held liable for the illegality, accuracy or truthfulness of the User Content. The Provider does not use special tools or algorithm-based decision-making for moderating the content.
4.2. Contents policy. User may not upload, transmit or otherwise provide to or send through the Service any content, data or materials that:
4.2.1. are unsolicited advertising or content (i.e. "spam"); when sending a commercial communication, the User is obliged to have the addressee's consent to the sending of the commercial communication; furthermore, the User is obliged by law to indicate in the text of the commercial communication the identity of the sender on whose behalf the communication is made, and to indicate clearly and distinctly the possibility for the addressee to express, without any costs, his/her refusal to receive further commercial communications,
4.2.2. give the impression that the sender of the content is another, generally known entity, such as Facebook, Google, Apple, Instagram, HSBC, Fio, CSOB, etc. (phishing); the User is not allowed to choose a sender name that is not related to the User's name or gives the impression that the User is someone else,
4.2.3. promote:
4.2.3.1. illegal goods and services - especially drugs, pornography, violence,
4.2.3.2. endangering the intellectual, emotional or moral development of children,
4.2.3.3. consumer credits, loans, lotteries, casino, betting and gambling; an exception may be agreed upon and approved by the Provider, exclusively for the following areas and always separately for each communication channel:
4.2.3.3.1. SMS notification messages (about loan approval, loan maturity, etc.),
4.2.3.3.2. Business communications to existing clients,
4.2.3.3.3. Reactivation of inactive contractual clients;
4.2.3.4. audiotex links;
4.2.3.5. political content without prior consent of the Provider
4.2.4. The User is not entitled to use the transaction channel for sending bulk (i.e. promotional) messages.
4.2.5. contain sensitive personal data,
4.2.6. contain or activate any malicious code (software, hardware or other technology, including malware, the purpose or effect of which is to allow unauthorized access to or disrupt or otherwise damage a computer, software, hardware or network or prevent another customer or authorized user from accessing or using the Service),
4.2.7. infringe intellectual property rights, other rights of third parties or legal regulations.
4.3. Notification mechanism. The Provider accepts all notifications containing information about the occurrence of User Content within the Portal that the notifier (e.g., the User) considers illegal. A Notifier may send a notification to Provider using the form. The Provider allows the notification to include at least the following information:
4.3.1. a sufficiently substantiated explanation of why the notifier claims that the content in question is illegal,
4.3.2. an unambiguous indication of the exact electronic location of the content, such as the URL address, and, if necessary, additional information to identify the illegal content depending on its type,
4.3.3. the name or title of the person making the notification and his/her email address; this does not apply if you are notifying content that you believe constitutes an offence referred to in Articles 3 to 7 of Directive 2011/93/EU,
4.3.4. a statement confirming that the person or entity making the notification believes in good faith that the information and allegations contained in the notification are accurate and complete.
4.4. Protection against abuse. If the User frequently provides apparently illegal content, the Provider may suspend the provision of the Services and access to the User's account without prior notice. When making decisions in such cases, the Provider shall take into account the number of items of manifestly illegal content or manifestly unfounded notifications or complaints submitted in a certain period, their rate in relation to the total number of information or notifications, the severity of the abuse, the nature of the illegal content, the consequences of such abuse, and the intention of the recipient of the Service, person, entity or complainant, if it can be implied.
5. OTHER RIGHTS AND OBLIGATIONS
5.1. Warranty Letter. The Provider reserves the right to request from the User a duly completed and signed document, by signing which the User undertakes to use the Services properly. The User shall complete and sign the Warranty Letter with true and complete information, as required, for each individual channel. The User is further obliged to abide/adhere to/respect any calls made by the Provider. If he/she fails to comply with such requests, the Provider may proceed in accordance with paragraph 2.3. The User shall confirm this consent and instruction in addition to agreeing to the Terms.
5.2. Cooperation. The User shall provide the Provider with all cooperation and assistance to enable the Provider to exercise its rights and perform its obligations under or in connection with the Agreement. Failure of the User to provide cooperation or to perform any other obligation under the Agreement shall constitute an impediment on the part of the User which shall entitle the Provider, in addition to the procedure under paragraph 2.3, to suspend performance. The duration of the impediment for which the Provider is unable to perform shall be calculated from the first day on which the impediment occurred until the moment when the User informs the Provider of the removal of the impediment.
5.3. Remedial Measures. The User is obliged to notify the Provider immediately of any circumstance or fact known to the User in advance that could affect the use of the Service (e.g. excessive volume of distributed messages). If the User becomes aware of any actual or potential activity prohibited in paragraphs 3.1 or 4.2, the User must immediately notify the Provider and take all appropriate measures to stop the activity and mitigate its effects (such as interrupting and preventing unauthorized access to the Service or removing User Content).
5.4. User Responsibility. User is solely responsible for:
5.4.1. compliance with the requirements set forth in the Documentation; failure to comply with such requirements may result in the Service not functioning properly or at all,
5.4.2. the legality of the processing and sending of User Content; in particular the User is responsible for ensuring that it is entitled to forward all User Content to the Provider and that its use, processing and sending with the purpose of providing the Service does not infringe the rights of third parties, in particular intellectual property rights, privacy rights or obligations stipulated by law,
5.4.3. having the addressee's consent to the sending of commercial communications and that the text of the commercial communication indicates the identity of the sender on whose behalf the communication is being made and clearly and conspicuously states how the addressee may, at no expense, indicate his or her refusal to receive further commercial communications,
5.4.4. informing persons whose personal or other data is transferred to the Provider for the purpose of providing the Service of such transfer of data to the Provider as processor, or obtaining consent to such transfer of personal data, if necessary; and
5.4.5. the use, security and protection of access data from unauthorized use, and all use of the Service through the User's systems or its access data, including any results obtained from such access or use and all conclusions, decisions and actions based thereon. User shall protect his/her password and take all appropriate and necessary measures to prevent disclosure of the password to any third party. If the User breaches this obligation, the User shall be liable for any damage that the Provider demonstrably incurs as a result. The Provider shall not be liable for any damage caused to the User as a result of a breach of the User's obligations.
6. RIGHTS AND OBLIGATIONS OF THE PROVIDER
6.1. The Provider reserves the right to verify the payment before using the Service and in case of doubt (e.g. the payment appears fraudulent, the identity of the sender of the payment does not match the User, etc.) not to add credit to the User for the payment.
6.2. The Provider has the right to include the User in its electronic database of users of the Service, to monitor and archive operations performed by the User when using the Service for the purpose of evaluating and improving the quality of the Service provided.
6.3. In the event that the User violates any provision of the Terms or any binding legal regulation, the Provider shall be entitled to claim compensation from the User for any damage or loss, such as contractual fines or other penalties that the Provider has paid or will be obliged to pay to third parties (state authorities, mobile operators, other contractual partners) as a result of the User's violation of a contractual or legal obligation.
6.4. The Provider is not responsible for misuse of funds on the accounts of registered Users of the Portal by third parties. However, the Provider shall take the necessary steps to prevent such misuse after the misuse is reported to it by the User.
6.5. The Provider has the right to archive the history of sent and received messages and the IP address of the User for a period of 2 years, in particular for the purpose of providing the necessary cooperation to public authorities.
6.6. The User agrees that the Provider may access the User's account and the content of the message if necessary for compliance with legal regulations, investigation carried out by the Provider pursuant to paragraph 4.1 or in order to respond to service or technical issues.
6.7. The User agrees that the Provider may use non-identifiable data about account usage and site visits for statistical and analytical purposes. When using these services, the Provider does not process or share any data that would allow a third party to identify individuals. The User agrees that the Provider may use and share anonymized data for analysis purposes.
7. PRICE AND PAYMENT TERMS
7.1. Price
7.1.1. The price for the provision of the Service is set out in the price list. The Provider may, at its discretion, change prices, introduce new fees or increase fees. Any changes to the price list shall be effective immediately and shall apply to all orders (e.g. sent messages) made after they are published.
7.1.2. Unless otherwise stated, all prices are exclusive of VAT, which the Provider shall charge the User in accordance with the law and the User agrees to pay in excess of the prices stated. The prices do not include any other taxes or fees. If the User is required to make any deduction from the payment of the price (for example, to pay income withholding tax or bank charges), the User must first inform the Provider of such fact. The Provider is entitled to increase the invoiced price so that it always receives the net amount due to it without any deductions or withholdings made.
7.1.3. The price for credits is due before the credits are credited to the User's account. Invoices will be sent electronically by the Provider to the User's email address. If there is a dispute between the parties, the User must pay the full price, regardless of the status or nature of the dispute. Payment obligations are not affected by force majeure events.
7.2. Pre-paid credit system
7.2.1. The User undertakes to pay for the use of the Service in advance in the form of pre-paid credit. When paying with credits, the User's credit balance will be reduced by the price of the services ordered. The basis for the reduction of credits is the data recorded in the Portal regarding the User's use of the Service.
7.2.2. The User may increase the balance of credits by using any of the payment methods mentioned above. To increase the credit balance, the User must select the amount of credit, the payment method and pay the relevant price. Unless otherwise stated, the credit will be increased by the Provider generally within 72 hours after receipt of payment.
7.2.3. The pre-paid credit remains valid for the duration of the Agreement. Unless otherwise specified in the Agreement, the User is obliged to use the unused credit by the end of the Agreement term, otherwise it is forfeited without any compensation.
7.2.4. The Provider is not obliged to refund the balance of the credit in money to the User. Unless otherwise stated, in the event of termination of the Agreement for any reason, the Provider is not obliged to return the credit balance to the User (this is not affected by the fact that the User has not used the full amount of credit) and the credit balance on the User's account shall cease without compensation.
7.3. Payment methods
7.3.1. If a violation of the Terms by the User is found, the Provider is not obliged to accept the payment until the parties agree on further action.
7.3.2. Payments by bank transfer to the Provider's account
7.3.2.1. The User shall pay the price by bank transfer to the account indicated in the invoice, using any payment identifiers indicated (e.g. variable symbol).
7.3.2.2. When paying by bank transfer, it may take approximately 1-5 working days for the payment to be credited to the Provider's account and the subsequent addition of credits to the User's account. If the variable symbol is not filled in properly when making the payment, then there may be a delay in processing the payment.
7.3.3. Payments by credit card, PayPal, GPwebpay, finby, American Express
7.3.3.1. Availability of payment methods may vary depending on the destination (e.g. EEA) and individual Users and therefore not all options may always be available for all users and countries.
7.3.3.2. The specific terms of this process may vary depending on integration with services such as PayPal, GPwebpay, finby, American Express.
7.3.3.3. In case of discrepancies or disputes regarding transactions, Users may contact the Provider's customer support. The Provider, as the entity accepting payments, is obliged to respond to any dispute regarding the transaction.
7.3.3.4. Refunds for unused credits topped up using this payment method are only possible on the same card that was used for the original transaction.
7.4. Chargeback. A Chargeback is a process of contacting a bank, credit/debit card provider or other payment method to decline, cancel or dispute a payment. The Provider reserves the right to immediately suspend access to the Service without notice if it receives a Chargeback notice. Chargebacks will be considered a breach of payment obligations under the Agreement. The Provider reserves the right to dispute the Chargeback and take reasonable steps to restrict User’s future access to the Service if the Provider believes that the User has requested the Chargeback in bad faith.
7.5. Refunds
7.5.1. Irrespective of other provisions, the Provider shall not provide a refund (return of unused funds from the account), in particular in the following cases:
7.5.1.1. the User uses the Service in contradiction with the Terms, the law of the state in the territory of which the Service is provided, or in contradiction with the law of the Czech Republic, or in contradiction with the terms of service of mobile operators or other providers of Third-Party Material, or if the mobile operator or an administrative authority recommends or orders the termination or suspension of the provision of the Service,
7.5.1.2. the User is not satisfied with the provided services, and any identified deficiencies preventing the correct and reliable functioning of the offered services have not been notified to the Provider or the User has not followed all Provider's instructions to fix the given issue, which arose outside the Portal (e.g. at an external provider, operator or partner),
7.5.1.3. in respect of payments made earlier than 30 days from the date on which the User made the request for refund,
7.5.1.4. in the other cases referred to in paragraph 2.3.
7.5.2. In accordance with paragraph 9.2.3, the Provider shall provide a refund of unused credits only in the event that the Service could not be used by the User in the manner guaranteed by the Provider and all the following conditions have been met at the same time:
7.5.2.1. the issue arose on the Provider's side and the User could not influence this in any way (e.g. failure of the SMS gateway/services),
7.5.2.2. the Provider has individually assessed the request for compensation and has decided to comply with the received request; the Provider reserves a period of 30 working days to process such request.
7.5.3. Unless otherwise stated, the User is obliged to pay the price even if he/she does not use all the credits. In this case, the unused credits shall be forfeited without refund. In the event of termination of the Agreement, the price for unused credits shall not be refunded.
8. LEGAL LIABILITY
8.1. Indemnification. User represents and warrants to Provider that he/she possesses the necessary rights and consents with respect to the User Content so that, upon its receipt by the Provider and its submission or other processing in accordance with the Agreement, no intellectual property rights, privacy rights or other rights of third parties will be infringed, nor will any law be violated. The User shall indemnify and hold the Provider harmless from and against all damage, including penalties, fines and legal costs, which may arise in connection with the User's breach of the Terms, use of the Service outside the purpose, scope or manner of use permitted by the Terms or contrary to the Provider's instructions or any other act or omission of the User in connection with the Agreement.
8.2. Disclaimer of Warranties. The Service is provided "as is" and Provider makes no warranty to User that the Service is available or will operate without interruption, be fit for a particular purpose, be compatible with any software, system or other services, or be secure, accurate or error-free. All Third-Party Materials are provided "as is" and any representation or warranty regarding Third-Party Materials is solely between the User and the provider of the Third-Party Materials. In particular, the Provider shall not be liable for damage caused by not sending and/or delivering messages properly and on time, if the message is forwarded to the operator's paid network, or if the Service is unavailable due to reasons on the part of third parties, in particular operators or due to the intervention of public authorities and/or for reasons for which the company cannot be held responsible (force majeure).
8.3. Limitation of Liability. To the maximum extent permitted by law, Provider shall not be liable for lost profits, inability to use or interruption of the Service, or for loss, damage or recovery of User Content or breach of security thereof. The Provider's maximum liability for damages arising out of or in connection with the Agreement is limited in aggregate to an amount corresponding to 100% of the price paid by the User to the Provider for credits under the Agreement in the 3 months preceding the event giving rise to the claim for damages. Beyond this amount, the Provider's liability is excluded.
8.4. Infringement. If, in Provider's opinion, the Service is defective, infringes or may infringe the rights of third parties or the law, Provider may, at its sole discretion and expense:
8.4.1. obtain for the User the right to use the Service in accordance with the Agreement,
8.4.2. modify the Service so that it is not defective, does not infringe rights and at the same time provides similar functionality; or
8.4.3. terminate the Agreement with immediate effect and request that the User stop using the Service.
8.5. Exclusivity. This section 8 governs the entire liability of the Provider for damage or defects in the Service. The User expressly waives any rights not provided herein and agrees to the above limitation of liability.
9. DURATION OF THE AGREEMENT
9.1. Duration. The Agreement is concluded for an indefinite period of time. Over and above any other rights arising under law or agreed by the parties:
9.1.1. either party may terminate the Agreement with immediate effect if the other party materially breaches the Agreement and is unable to remedy such breach, or is able to remedy such breach but such breach remains unremedied 30 days after receipt of written notice of such breach,
9.1.2. Either party may terminate the Agreement with immediate effect if the other party becomes bankrupt or is about to become bankrupt within the meaning of the law in force at the date of termination, files for insolvency proceedings against its person (debtor's petition) or enters into liquidation, and
9.1.3. the Provider may terminate the Agreement without refund and with immediate effect if: (a) the User defaults on payment of any amount when due and such default continues for more than 15 days, (b) the User uses the Service in violation of the law of the state in whose territory the Service is provided or in violation of the law of the Czech Republic, (c) the User uses the Service in violation of the terms of service of mobile operators or other providers of Third-Party Material, (d) the User uses the Service in violation of the Terms, (e) the mobile operator or an administrative authority recommends or orders termination or suspension of the Service, (f) the User has not logged into the Portal and has not used the API of the Service for more than 2 years, (g) the User has not made up the credit within 6 months of registration on the Portal, (h) the User has not respected the Provider's requests (e.g. change of non-compliant message content); The Provider may first notify the non-compliant User together with a request for rectification, in which case the User is obliged to comply with the request and make the required changes within 3 working days at the latest. If the User fails to do so, the Provider may terminate the Agreement in accordance with this paragraph; or (i) the User breaches any other provision of the Terms, in particular paragraph 3.1 or 4.2.
9.1.4. If and to the extent that the Service constitutes a data processing service within the meaning of Regulation (EU) 2023/2854 on harmonised rules on fair access to and use of data, and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (the "Data Act"), entities established within the EU shall be entitled to terminate the Agreement in order to initiate a data processing service provider switch (including migration to their own on-premise infrastructure) by delivering written notice of termination to the Provider no less than two (2) months in advance. In such event, the Parties shall comply with the provider switching procedure set forth in Annex 1 (Provider Switching Procedure). If the User terminates the Agreement in accordance with this Article, the User shall be obligated to pay the Provider all applicable fees and early termination penalties as set forth in Annex 1.
9.2. Post-termination procedure. Unless otherwise agreed by the parties, upon termination of the Agreement:
9.2.1. the rights and licenses granted by the Provider to the User shall immediately terminate,
9.2.2. after a further period of 3 months, the Provider may permanently delete the User Content; for the avoidance of doubt this obligation does not apply to data related to the User's use of the Service, including statistical and performance information related to the operation of the Service,
9.2.3. if the Provider terminates the Agreement according to paragraph 8.4.3 or if the User terminates the Agreement according to paragraph 9.1.1, provided that in any case the conditions of paragraph 7.5 are met at the same time, the price for unused credits will be refunded to the User; in all other cases, the cost of credits shall not be refunded and any fees that would have become payable had the Agreement remained in force shall become immediately due and payable by the User together with any amounts previously incurred but not yet paid upon receipt of the invoice.
9.3. Surviving Terms. Termination of the Agreement for any reason shall not affect the rights and obligations which by their nature are intended to survive its termination, in particular penalties, limitations of liability and the obligation to indemnify.
10. FINAL PROVISIONS
10.1. Communication. The parties shall communicate with each other primarily electronically via the contact persons' emails. If any communication or negotiation requires a written form, an e-mail with a simple electronic signature will suffice.
10.2. Amendment. Provider may change the Terms at its sole discretion, including but not limited to changes in applicable laws, services and contracts with its suppliers. Changes will be notified to the User by email or by notification in the administration of the Portal. Any changes shall take effect on the date specified, which shall be at least 30 days from the date of notification of the changes and shall apply to all subsequent use of the Service. If the User does not agree with the change, he/she may terminate the Agreement with effect upon the expiration of a 1-month notice period commencing on the first day of the calendar month following receipt of the written notice, such notice must be delivered to the Provider prior to the effective date of the change. In the event of notice under this paragraph, the Terms currently in force shall apply for the duration of the notice period. Continued use of the Service following the date of effectiveness of the change means that the Customer accepts and agrees to the changes..
10.3. Governing law and jurisdiction. All legal relations related to the Agreement shall be governed by Czech law. Disputes shall first be settled amicably by the parties. If they fail to reach an amicable settlement, disputes shall be adjudicated by the general courts having subject matter and local jurisdiction according to the Provider's registered seat.
10.4. Business Practice Exclusion. The parties exclude the application of trade practices pursuant to Section 558(2) and undertake the risk of a change of circumstances within the meaning of Section 1765(2) of the Civil Code. The failure or omission of either party to enforce any of its rights under the Agreement shall not be deemed a waiver of such rights in the future and shall not constitute an established practice between the parties.
10.5. Force Majeure. The Parties consider an event of Force Majeure to be any unforeseeable circumstances beyond their reasonable control, including but not limited to natural disasters, embargoes, strikes (including planned strikes), war, epidemics and cyber-attacks (e.g. DDoS). Failure to perform an obligation due to Force Majeure shall not constitute a material breach of the Agreement.
10.6. Severability. The invalidity, ineffectiveness, voidability or unenforceability of any part of the Agreement shall not affect the remaining parts of the Agreement. The parties shall replace any invalid, ineffective, void or unenforceable part of the Agreement with a valid, effective, non-void and enforceable part of equal commercial and legal effect within 14 days of receipt of a request from the other party.
10.7. Prohibition of assignment. The User may not set off against the Provider any claim, right or demand arising out of the Agreement, nor may the User assign any claim against the Provider to a third party without the prior written consent of the Provider; however, the Provider may assign the Agreement to its affiliate without the prior written consent of the User.
10.8. Marketing. The Provider may place the User's business name, logo, trademark or any other commercial designation on its website in the references section and use it as a reference in its offers and on social networks.
10.9. Entire agreement. The Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior arrangements of the parties with respect to the subject matter of the Agreement. In the event of a conflict between the documents constituting the Agreement, the documents shall apply in the following order: first the purchase order, then the Terms except for those documents referred to in the Terms, then the remaining documents in the order in which they are referenced.
Annex No. 1: Provider Switching Procedure
This Annex governs, if and to the extent that the Service constitutes a data processing service within the meaning of Regulation (EU) 2023/2854 on harmonised rules on fair access to and use of data, and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (the "Data Act"), the procedure for switching data processing service providers in accordance with Articles 23 et seq. of the Data Act. To the extent that the provision of the Service does not fall within the definition of a data processing service under the Data Act, this Annex shall not apply and shall not confer upon the User any special rights or claims under the Data Act.
1. GENERAL PROVISIONS
1.1. The notice period for termination of the Agreement pursuant to the Data Act shall be two (2) months from the date of delivery of written notice of termination to the Provider in accordance with the Terms and Conditions.
1.2. During the notice period, the User shall be obligated to notify the Provider whether it intends to:
1.2.1. transition to an alternative data processing service provider, in which case the User shall provide the requisite identification and technical details of the new provider;
1.2.2. migrate to the User's own on-premise infrastructure; and/or
1.2.3. permanently delete all exportable data and digital assets.
1.3. Where the User notifies the Provider of its intention pursuant to paragraph 1.2.1 or 1.2.2, the Provider shall facilitate the User's transition to an alternative data processing service with another service provider, or the transfer of all exportable data and digital assets to the User's own on-premise infrastructure, without undue delay and in any event no later than the expiry of a transition period of thirty (30) calendar days commencing upon the expiration of the notice period set forth in Article 1.1 (the "Transition Period").
1.4. The User shall be entitled to extend the Transition Period once for such additional period as it deems appropriate. Notice of such extension shall be delivered to the Provider no later than the final day of the Transition Period.
1.5. In the event that the Transition Period specified in paragraph 1.3 is technically unfeasible, the Provider shall notify the User within fourteen (14) business days of receipt of the request to change providers, providing due justification for such technical unfeasibility and specifying an alternative transition period, which shall not exceed seven (7) months.
1.6. During the Transition Period, the Agreement shall remain in full force and effect, and the Provider shall:
1.6.1. provide the User and any third parties authorised by the User with reasonable cooperation throughout the provider switching process;
1.6.2. exercise due care with the objective of maintaining operational continuity and shall continue to provide services in accordance with the Agreement;
1.6.3. furnish clear information regarding any known risks to service continuity;
1.6.4. maintain a high level of security, particularly with respect to data security during transfer and the ongoing security of data throughout the Transition Period, in accordance with applicable Union or national law.
1.7. The Provider shall support the User's exit strategy pertaining to the contractually agreed services by furnishing such information as is reasonably necessary for the transition.
1.8. Upon expiry of the Transition Period, the Provider shall make available an additional period of thirty (30) calendar days for data preservation and accessibility (read-only access or export interface functionality) to enable the User to complete the data retrieval process. Upon expiry of such period and provided that the provider switching process has been successfully completed, the Provider shall permanently delete all exportable data and digital assets created directly by or relating to the User; this obligation shall not extend to any data which the Provider is obligated to retain pursuant to applicable law.
1.9. The Agreement shall terminate, and the Provider shall notify the User thereof, upon successful completion of the provider switching process; or, where the User does not wish to change providers, upon expiry of the notice period.
2. SUPPLEMENTARY INFORMATION
2.1. The Provider hereby informs the User that the following information is available here;
a) a detailed specification of all categories of data and digital assets that may be transferred during the provider switching process, including, at a minimum, all exportable data;
b) an exhaustive specification of categories of data specific to the internal operation of the Service that are to be excluded from the exportable data referred to in point (a) of this paragraph;
c) information regarding the available procedures for switching data processing service providers and transferring data, including information on the available switching methodologies and transfer formats, as well as any technical and other limitations known to the data processing service provider;
d) a current online register maintained by the data processing service provider containing details of all data structures and data formats, as well as the applicable standards and open interoperability specifications in which the exportable data referred to in Article 25(2)(e) are available;
e) information concerning the jurisdiction(s) to which the information and communication technology infrastructure utilised for data processing in connection with the respective services is subject;
f) a general description of the technical, organisational, and contractual measures implemented by the Provider to prevent international access by governmental authorities to non-personal data stored within the Union, or the transfer thereof, where such access or transfer would contravene Union law or the national law of the relevant Member State.
2.2. No provision of the Agreement shall obligate the Provider to disclose its proprietary trade secrets, technologies protected by intellectual property rights, or other confidential information.
3. PROVIDER SWITCHING FEES
3.1. With effect from 12 January 2027, the Provider shall not levy any fees for the provider switching process within the meaning of Article 29(1) of the Data Act. This provision shall be without prejudice to the Provider's right to charge fees for other professional services unrelated to the provider switching process itself (including, without limitation, development work, integration with other systems, and data format conversion services).
3.2. The following shall be deemed to constitute part of the reasonable cooperation provided by the Provider in connection with the Data Act:
3.2.1. access to standard self-service export tools and documentation pursuant to Article 2.1, enabling the export of data and digital assets;
3.2.2. one (1) introductory orientation meeting (of up to sixty (60) minutes' duration) for the purpose of planning the export and verifying the transfer procedure.
3.3. The Parties acknowledge and agree that the following activities are not mandated by the Data Act, and accordingly, their provision by the Provider may be charged on a time and materials (T&M) basis, comprising the actual time expended multiplied by the Provider's hourly rate, plus costs (unless otherwise agreed, the Provider's hourly rate shall be CZK 2,500 plus VAT):
3.3.1. coordination and project management of the provider switching process beyond the scope of the introductory orientation meeting;
3.3.2. conversion of data into data formats other than those specified in the documentation pursuant to Article 2.1, and conversion of data for reasons attributable to the target environment requirements;
3.3.3. export and import testing, and resolution of import errors not attributable to the Provider;
3.3.4. any other activities requested by the User that are not essential for standard self-service export or are not encompassed within the activities specified in Article 3.2 of this Annex.
3.4. For the avoidance of doubt, the User shall remain obligated to pay service fees throughout the notice period in accordance with the pricing terms in effect as at the date of the notice of termination.
3.5. In the event that the User holds unused credits at the time of termination of the Agreement, the Provider shall be entitled to charge the User a contractual penalty for early termination of the Agreement. The quantum of such penalty shall correspond to the price paid by the User for the unused credits. The early termination penalty shall be invoiced as at the date of termination of the Agreement. For the avoidance of doubt, any unused credit balance in the User's account, as well as any other entitlements arising from purchased packages, shall not be subject to refund, and the User's claim for such refund shall be set off against the Provider's claim for payment of the contractual penalty pursuant to this Article.