General Terms and Conditions

General terms and conditions of delivery and trade

date of issue: 1 January 2023

 I. Introductory provisions 

1. These terms and conditions of delivery (hereinafter referred to as the "Terms and Conditions") are terms and conditions within the meaning of Section 1751 of Act No. 89/2012 Coll., Civil Code (hereinafter referred to as the "Civil Code"). Unless otherwise provided for in the contract, these terms and conditions govern the legal relationship between the Customer (hereinafter referred to as the "Customer") and

 Promedeus s.r.o.

IČ: 04939948, DIČ: CZ04939948

with registered office: Maříkova 1899/1, 621 00 Brno

filed with the Regional Court in Brno, file no.: C 92724

Contact details: objednavky@promedeus.cz , www.promedeus.cz

  (hereinafter referred to as "Supplier"),

 irrespective of the fact what specific type of contract is concluded between the Customer and the Supplier. The specification of the goods or services to be supplied (hereinafter referred to as "Supply") is defined in the contract.

 2.                The provisions of the Terms and Conditions are an integral part of the purchase, supply or other contract. Deviating provisions in the Contract shall prevail over the provisions of these Terms and Conditions.

 3.                In the event that the Customer's terms and conditions also apply in addition to these Terms and Conditions, then in the event of a conflict between them and these Terms and Conditions, these Terms and Conditions shall prevail.

II. Prices, payment terms 

1. The purchase price or remuneration for the provision of the Supplies or services (hereinafter referred to as "Price") shall be agreed between the parties.

2.                The Supplier reserves the right to change the Price in the event of a devaluation of the CZK greater than 3% according to the current value of the CZK to EUR/USD exchange rate quoted by the CNB on the invoice date.

3.                The Supplier further reserves the right to increase the Price if the average annual consumer price index according to the Czech Statistical Office on the invoice date increases by more than 3%. The Price will be increased by the amount of this index.

4.                The Supplier shall not be obliged to notify the Customer in writing of changes to the Price in accordance with Article II, paragraph 2 or 3.

5.                The Customer shall pay the Price to the Supplier within the time limit specified in the invoice or within the time limit specified in the contract.

 

III. Delivery date

1. The timely completion of the Delivery by the Supplier is subject to the timely provision of the necessary cooperation and compliance with the obligations of the Customer. In the event of failure to provide assistance or to comply with other obligations of the Customer, the delivery deadline shall be extended by the period during which the Customer's failure to comply with its obligations has lasted.

2.                The Supplier's performance shall also be conditional upon the Customer not being in default of any payment to the Supplier under any other contractual relationship between the Supplier and the Customer. During the period of such default by the Customer, the Supplier shall not be in default in the provision of the subject Delivery and the agreed term shall be reasonably extended by at least a period corresponding to the duration of the above-mentioned default by the Customer.

3.                If the provision of an advance payment is agreed, the Supplier shall not be obliged to deliver the Supply before such payment is made.

4.                The Supplier shall be entitled to complete the Delivery even before the agreed performance date; such performance shall be deemed to be proper and the Customer shall be obliged to accept it.

 

 

IV.              Transfer of title, transfer of risk of damage

 1. The Customer shall acquire the ownership right to the subject of the Delivery by full payment of the agreed Purchase Price.

 2.     The risk of damage to the Delivery shall pass to the Customer as follows:

- in the case of a delivery without installation or assembly, at the moment of handing over the Delivery (or partial Delivery) to the Customer, or upon its dispatch or handing over to the carrier,

- in the case of a delivery that includes installation or assembly, upon completion and handover of the Delivery (or partial Delivery), or upon successful completion of a trial run, if agreed. If a trial run has been agreed, its commencement shall follow the completion of the installation or assembly without delay. If the test operation is not commenced within 5 days after the installation or assembly has been carried out and unless otherwise agreed, the risk of damage to the Supplier shall pass to the Customer on expiry of this period.

 3.     If, for reasons on the Customer's side, there is a delay in taking delivery of the Supplies, or a delay in their dispatch or handover to the carrier, or a delay in the commencement or completion of installation, assembly or test operation, the risk of damage to the Supplies shall pass to the Customer on the first day of such delay. §

 V. License agreement

 1. If the delivery includes application software, the Supplier is the exclusive owner of the copyright to this application software (hereinafter referred to as "APS").

 2.     The Supplier grants the Customer a non-exclusive license to use the AUV. The Customer undertakes not to provide or transfer the AUV or its documentation to third parties without the express consent of the Supplier.

 3.     The remuneration for granting the license is already included in the agreed Price.

 4.     The AUV is protected by intellectual property rights and the Supplier licenses it to the Customer in accordance with § 2358 et seq. of the Civil Code.

                       VI. Compensation for damages

 1. The overall scope of the Supplier's obligation to compensate the Customer for damage to property (damage) incurred by the Customer in connection with the performance of this Agreement or breach of law is limited to compensating only actual damage. Lost profits and other types of damages shall not be compensated. The above agreed limitation shall not apply to damages caused intentionally or through gross negligence.

 2.     If the Supplier's obligation to carry out the Delivery has ceased due to the impossibility of performance due to force majeure, the Supplier shall be obliged to compensate the Customer for the resulting damages only up to 10% of the total Contract Price under this Agreement (excluding VAT), for all damages in the aggregate.

 3. If the Parties agree on a quality guarantee in the Contract, this shall fully replace the Supplier's statutory liability for defects. 

VII. Withdrawal from the contract

 (1) The parties may withdraw from the contract only in cases of material breach of contract or in cases expressly provided for in the contract or in these terms and conditions or in cases expressly provided for by law. Withdrawal shall be effective on the date of delivery of written notice of withdrawal to the other party.

 2.                A material breach of the contract means:

(a) a delay by the Supplier in the performance of the Supply which is the Supplier's fault, and which exceeds 30 days. Upon expiry of this period, the Customer shall immediately notify the Supplier whether it insists on the performance of the Supply. If the Customer insists on its performance, it may only withdraw from the Contract after the expiry of 30 days following the delivery of the said notification to the Supplier,

(b) the Customer is in default in payment of the invoiced amount for more than 30 days,

c) failure of the Client to provide cooperation and the consequent impossibility of the Supplier's performance for more than 30 days,

d) unauthorized disposal of the results of the Supplier's intellectual property by the Customer,

e) breach of the obligations set out in Article XI of these Conditions.

 3. The Contracting Party shall be entitled to withdraw from the Contract with effect from the date of delivery of a written expression of intent containing the notice of withdrawal to the other Contracting Party, also if:

(a) a decision on the bankruptcy of the other Party has been issued by the competent insolvency court,

(b) the application for a bankruptcy order has been rejected by the competent insolvency court due to the lack of assets of the other party,

(c) a petition has been filed with the insolvency court by the other Party for a bankruptcy order in respect of that other Party,

(d) enforcement of a judgment or execution against the property of the other Party has been unsuccessfully pursued.

 4. The Parties shall also be entitled to withdraw from the Contract if a force majeure circumstance prevents the execution of the Delivery for more than 3 months. 

VIII. Confidentiality, protection of personal data

 Confidential information means any information, data, information, or communication marked as "Confidential" or similarly described by the party providing the information, and in particular any commercial or technical information and data communicated by one of the parties to the other which relates to the purpose for which the contractual relationship in question is concluded, in any medium, whether on paper or electronically. If data or information of a confidential nature is communicated orally, the receiving party must be notified of this fact at the time of the oral communication and the confidentiality must subsequently be confirmed in writing by the transmitting party within 3 days of the oral communication.

  Neither Party shall be entitled to disclose confidential information to a third party or to make confidential information available to a third party in any way, even in part, without the prior written consent of the other Party. The Parties shall be entitled to use the documents, data and information received in connection with the confidential information only for the purposes set out in this contractual relationship. It shall not be a breach of the obligation of confidentiality to disclose information in the performance of a legal obligation, or to disclose information to a court or arbitration tribunal in the exercise of any claim or right under the contractual relationship, or to disclose information, documents and data to persons forming a concern (holding) with the Party, consultants and other persons involved in the performance of the contractual relationship or activities related to the contractual relationship who are under a statutory or contractual obligation of confidentiality, and neither Party shall be entitled to exempt such persons from the obligation of confidentiality in any connection with the contractual relationship. The Parties undertake to ensure that such persons are made aware of the obligation of confidentiality and are bound to observe it to the same extent as the Parties. The obligation of confidentiality shall not apply to:

- information which is publicly known at the time of the conclusion of the contractual relationship, or which is subsequently disclosed other than through a breach of the obligation of confidentiality by the contracting party,

- information which the contracting party is required to disclose by law or by a decision of a public authority authorized to do so by law,

- information which is already demonstrably available to the contracting party at the date of conclusion of the contractual relationship,

- information which is or will be disclosed to the Party by a third party without any claim of restriction on its use or confidentiality.

 1.       The obligation of confidentiality continues after the termination of the contractual relationship in question. In the event of a breach of the obligations under this Article, the breaching party shall be obliged to pay a contractual penalty of CZK 100,000 for each such breach. The claim of the injured party for damages shall not be affected.

 2.             The Customer agrees that the Supplier shall process, collect, and store the Customer's personal data referred to in the contract and other personal data necessary for the provision of services under the contract. Such personal data shall be processed and stored by the Supplier in the Supplier's internal register for the purpose of fulfilling its obligations under the contract and for record-keeping purposes.

 3.             The Customer grants its consent pursuant to paragraph 4 of this Article for the duration of the contractual relationship arising from the concluded contract between the Customer and the Supplier, and for a further period of five (5) years from the fulfilment of all the Customer's rights and obligations under such contract.

 IX. Assignment of Contract and Subcontractors

1.       the Customer shall not, without the prior written and express consent of the Supplier, assign in whole or in part any of its rights, duties or obligations under this Contract, or subcontract the performance of part or all of the services under this Contract to a third party, but the Supplier may grant or withhold such consent in its sole discretion. Even if the Contractor grants such consent, the Client shall remain solely responsible for the proper selection and supervision of its agents and subcontractors.

 X.               Final Provisions

 1.       If any provision of the Contract or these Conditions is or becomes invalid, unenforceable, illusory, or ineffective, the validity, enforceability, or effectiveness of the remaining provisions of the Contract or these Conditions shall not be affected thereby. In such a case, the parties to the Contract shall use their best efforts to enter a written amendment to the Contract replacing the invalid, unenforceable or ineffective provision in question with a new provision that best serves the purpose originally intended. The right to claim the cancellation of an obligation within the meaning of Article 2000 of the Civil Code is excluded.

 2.                For the purposes of these Terms and Conditions, a written form means a document executed either (a) in hard copy and sent to the other Party at the address of the Party specified in the Contract by registered post or courier service or by any other means that allows for the transmission of a return receipt to the sender, or (b) in electronic form and sent by electronic mail with a guaranteed electronic signature or electronic mark.

 3.                A document shall be deemed to have been delivered on the third working day after it has been sent by one of the methods referred to in the preceding paragraph to the relevant address, even if the addressee has not received the document.

 4.                The legal relationship between the parties shall be governed by the law of the Czech Republic, excluding the application of the UN Convention on Contracts for the International Sale of Goods. If the contract or these terms and conditions do not contain their own regulation, the rights and obligations of the parties shall be governed by the Civil Code.

5. The application of § 558(2), § 1726, § 1728, § 1729, § 1740(3), § 1744, § 1751(2), § 1757(2) and (3), § 1765, §§ 1798 to 1800, § 1950 is excluded. § 1995(2) and Civil Code § 2630. The parties expressly acknowledge that they are entering into this Agreement as entrepreneurs during their business. Neither party shall be in a position of a weaker party with respect to the other.

 6. Any disputes arising out of or in connection with the contract shall first be resolved by seeking an agreement. If no such agreement is reached, the dispute shall be decided by the court of competent jurisdiction of the Supplier's place of business.

 7. These Terms and Conditions, together with the document to which they are annexed and the appendices hereto, constitute the entire contract and supersede any prior agreements between the parties relating to the subject matter of this contractual relationship. The Parties agree that beyond the scope of this Agreement, no rights and obligations may be inferred from past or future practices established between the Parties or from commercial practices observed generally or in the industry relating to the subject matter of this Agreement.

 8. The Supplier is entitled to assign the Contract to another person.

 9. The Contract may be amended and supplemented only by written numbered amendments signed by both parties. No contract or amendment thereto shall be negotiated until the parties have agreed in full agreement on all the particulars by written expression (in the case of an order, this must be a confirmation of the order in its entirety without any deviation) in its entirety.

 10. The Supplier is entitled to change these conditions in accordance with Section 1752(1) of the Civil Code. The amendment shall take effect 10 days after its delivery to the Customer in accordance with Article XII, paragraph 2 of these Conditions. The Customer is entitled to reject the amendments within 10 days of the date of delivery of the notice of amendment to these Conditions and to terminate the obligation for this reason with a maximum notice period of 30 days from the date of delivery of the notice to the Supplier.