General Terms
and Conditions

Software Product and Payment Terminal

VALID AND EFFECTIVE FROM 15 NOVEMBER 2022

1. DEFINITIONS AND INTERPRETATION OF TERMS

1.1. A Package is a package that includes, in particular, the Licence and the Payment Terminal Lease, plus other products as may be the case. The specifications for each Package are published on the Company’s website.

1.2. The Price List means a list of prices of the individual Products of the Company and combinations thereof and/or of a Package. An up-to-date version of the Price List is always available at www.dotykacka.cz and, in a written format, also from the Representatives of the Company. All prices for the Products and/or a Package include VAT unless explicitly stated otherwise. The Price List is an integral part of the General Terms and Conditions – Software Product and Payment Terminal.

1.3. The GDPR means the Regulation of the European Parliament and Council (EU) 2016/679 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 (Data Protection Directive) and other relevant legal regulations related to the personal data protection valid and effective in the Czech Republic.

1.4. The Licence is the right granted by the Company for the Customer to use the Software Product.

1.5. The Licensing Agreement means the agreement between the Company and the Customer under which the Customer is granted the Licence. The Licensing Agreement is entered into on the basis of an order, which also includes these general terms and conditions, through the mechanism as specified in Article 3 of these general terms and conditions.

1.6. The Lease means the lease by the Customer of one or multiple Payment Terminals.

1.7. The Sales mean the Customer’s sales accomplished through a single Payment Terminal.

1.8. The Civil Code means Act no. 89/2012 Sb., Civil Code.

1.9. The Payment Terminal means the Dotypay-branded terminal which is specified in the handover report signed by the Customer and serves the purpose of accepting and processing electronically payment card transactions made with payment cards from the international card companies VISA and MasterCard or other payment cards (meal voucher cards in particular).

1.10. The Payment Service Provider is the payment service provider of the Company’s choice, currently SKPAY, a.s., with its registered office at Nám. SNP 35, 811 01 Bratislava, Slovakia. SKPAY a.s. is supervised by the National Bank of Slovakia, Imricha Karvaša 1, 813 25 Bratislava, Slovakia. SKPAY, a.s. is authorised to provide payment services in the Czech Republic related to the acceptance of payment cards from merchants on a cross-border basis (without establishing a branch) on the basis of an authorisation granted in the Member State in which it has its registered office and on the basis of the relevant notification to the Czech National Bank. SKPAY, a.s. has entrusted the provision of commercial and support activities to SIA Central Europe a.s., with registered office at Röntgenova 1, Bratislava – mestská čast‘ Petržalka 851 01, registered in the Commercial Register of the District Court Bratislava I, Section: as, Insert No. 7007/B, ID No.: 31372074; the Company is entitled to unilaterally change the Payment Service Provider at its choice.

1.11. The Product is a collective term for the Software Product, the Goods, the Payment Terminal and the Services of the Company. Up-to-date information on the various Products on offer from the Company is available at www.dotykacka.cz. In the event of any questions about the Products, the Customer can also contact the Company’s Representative, the Company’s contact points (a contact list is posted on the Company website) or the Company’s call centre.

1.12. The Services cover any service provided by the Company to the Customer, in particular the installation and customisation of the Product. The Services are provided for the prices as per the current valid Price List.

1.13. The Contract means any contract or agreement between the Company and the Customer that regulates the Parties’ respective rights and obligations formed in connection with the supply and use of the Products by the Customer, in particular the Licensing Agreement, selling contracts, the contract whereby the Package is provided, etc.

1.14. The Contractual Relationship means the legal relationship between the Company and the Customer established by the Licensing Agreement.

1.15. The Parties mean the Company on the one hand and the Customer on the other. For the avoidance of doubt, both Parties declare that they conclude the Contracts in connection with their business.

1.16. The Software Product is a pool of software as per the Customer’s Licence that includes the Company’s software – the PoS system – and, as the case may be, a payment application and other Payment Terminal software and also all existing updates and add-ons which have been provided by the Company to the Customer in addition to the original Software Product. The Software Product is not the subject of purchase; only the right to use it (the Licence) is provided.

1.17. The Company means the business corporation Dotykačka ČR s.r.o., company registration no.: 062 90 914, with its registered office at Plzeňská 3217/16, 150 00 Prague 5, entered in the Commercial Register maintained by the Metropolitan Court in Prague, under file no. C 279594, or any company that becomes the successor of Dotykačka ČR s.r.o. and/or is assigned the Licensing Agreement or any other Contract.

1.18. The Transaction Fee is the fee charged on every non-cash transaction effected via the Payment Terminal.

1.19. The Company’s Account means the Company’s account published on the Company’s website or shown on a pertinent tax document issued by the Company.

1.20. The Customer means any business corporation or natural person conducting business who purchased and/or uses the Company’s Product and/or Package. For the avoidance of doubt, it is stipulated that every person identifying him-/herself with respect to the Company under its company registration number is considered an entrepreneur in the meaning of Section 420 of the Civil Code. In the meaning of the said Section any purchaser to whom the original Customer transfers the Contract or which enters the Customer’s rights and obligations as the successor or to which as the successor the Contract passes becomes the Customer.

1.21. The Representative means an agent or an employee of the Company through whom the Customer can, among other things, order the Product or a Package.

1.22. The Goods mean any goods supplied to the Customer by the Company under a sales contract that is entered into. The Goods include, without limitation, hardware, such as tablets, printers or the Payment Terminal, and the hardware’s accessories and attachments, such as USB bar code readers.

2. INTRODUCTORY PROVISIONS

2.1. The General Terms and Conditions – Software Product and Payment Terminal as given below (further the “Terms and Conditions”) become, in the meaning of Section 1751 of the Civil Code, an integral part of the Licensing Agreement or the Contract and regulate the Parties’ respective rights and obligations formed in connection with the Licensing Agreement and/or the Customer’s use of the Payment Terminal as part of a Package.

2.2. The headings contained in the present Terms and Conditions serve only to provide better orientation. If the provisions of the present Terms and Conditions ever refer to the singular, these references also include references to the plural and vice versa.

2.3. By entering into the Licensing Agreement, the Customer expresses his/her consent to all the provisions of the present Terms and Conditions. Provisions of the order diverging from those laid down in the Terms and Conditions take precedence over the provisions of the present Terms and Conditions.

2.4. For the avoidance of doubt the Parties expressly state that:

a) these Terms and Conditions pertaining to the Software Product and the Payment Terminal do not exclude the applicability of the General Terms and Conditions – Goods and Services, which are applicable if the Customer also orders Goods and/or Services;

b) these Terms and Conditions do not exclude the applicability of the Payment Service Provider’s General Terms and Conditions.

2.5. For the avoidance of doubt, the Parties acknowledge that in the event that, for a certain limited period of time, the Company offers the Customer more favourable conditions for the use of the Products than those provided by the present Terms and Conditions and the Customer meets all the conditions specified for obtaining this special promotional offer, the special promotional offer of the Company prevails over the relevant provisions of the present Terms and Conditions.

3. CONCLUSION OF LICENSING AGREEMENT; PAYMENT AND DELIVERY TERMS AND CONDITIONS

3.1. The Customer may order the Licence and/or a Package by different methods, namely by:

a) placing a written order to be delivered to the Company or a scanned written order to be delivered to the Company’s email address, which is published on the Company’s website;

b) placing an electronic order through the Company’s web interface;

c) placing the order by phone provided that all the essential elements set out below are stipulated and expressed, and are approved between the Customer and the Company.

3.2. The Parties consider the following details as essential elements to be included in the order:

a) Customer identification – company name/trade name, company registration number, registered office/place of business, email address of the Customer, name of the person representing the Customer, telephone number;

b) the name of the Licence or the version and the period of time for which the Licence is to be granted, and/or the name of the Package or the version and the period of time for which the Package is to be provided;

c) the price for the Licence and/or the Package and the method of payment therefor.

3.3. The Licensing Agreement is concluded only at the time when, after the start of the installation process, the Customer enters his/her unique licence code and accepts the Company’s general terms and conditions for the Software Product and the Payment Terminal as displayed there. The Customer may acquaint him-/herself with the general terms and conditions for the Software Product and the Payment Terminal in advance on the Company’s website. Unless the Customer accepts the pertinent general terms and conditions, the Customer shall not be permitted to install the Licence and the Contract with respect to the section relating to the Software Product and the Payment Terminal shall not be concluded.

3.4. The Contract under which a Package is provided is not entered into, in respect of the section pertaining to payment services, until the Customer is approved by the Payment Service Provider. Unless the Payment Service Provider approves the Customer, the contract under which a Package is provided is discharged at the moment of such non-approval by the Payment Service Provider. The Parties agree that only the Licensing Agreement will be entered into between the Parties in the event of such non-approval. If the Customer has already been supplied with the Payment Terminal for lease, the Customer shall immediately return the Payment Terminal to the Company while being bound by the obligations under 4.3 and 4.4 of these Terms and Conditions.

3.5. In accordance with Section 26(3) of Act no. 235/2004 Sb., on Value Added Tax, as amended, the Customer agrees that the Company may make out tax invoices electronically. The Customer also agrees that, after the successful activation of the Licence, the invoices (tax documents) are only sent to his/her customer account accessible on the Company’s web interface.

3.6. In the case of the first payment, the price for the Licence and/or the Package falls due on the tenth day after the invoice date unless a different due date is indicated on the invoice, and is payable as:

a) an online card transaction through a payment gateway; or

b) a wire transfer to the Company’s account; or

c) a cash payment.

3.7. Any other payments for the Licence and/or a Package are to be made by the Customer as wire transfers to the Company’s account or automatic payments from the card saved with the payment gateway, always by the tenth day of the first month in the period for which the Licence and/or the Package payments are made unless the invoice shows a later due date. In the event of a delay in payment for the Licence and/or a Package, the Customer is also under an obligation to pay the statutory late payment interest pursuant to the applicable legislation.

3.8. The Company is registered for VAT. Along with the prices, the Company charges VAT in the amount applicable at the time of the taxable supply in accordance with Act no. 235/2004 Sb., on Value Added Tax, as amended. The price including VAT includes VAT in the amount applicable on the date of the acceptance of the order.

3.9. Any payment made by the Customer to the Company will first be set off against the payment of any debts the Customer may have (regardless of the cause of the debts – i.e. reimbursement for damages, a contractual penalty, etc.) and accessories, and then used to settle the price for the Licence and/or the Package.

3.10. The Customer will receive his/her unique licence code within 3 (three) working days from the payment of the price for the Licence and/or the Package for a definite period of time in accordance with 3.6 of these Terms and Conditions.

4. PACKAGE, LEASE, PAYMENT TERMINAL

4.1. If the Customer orders a Package that includes a Lease, then the Company undertakes to:

a) provide the Customer with a Payment Terminal fit for due use and maintain the same at the Company’s cost throughout the period of time for which the provision of the Package is stipulated, provided that the Customer abides by his/her obligations under the Contract, including these Terms and Conditions, in particular the obligations set out in 4.3 and 4.4 of the Terms and Conditions;

b) provide the Customer with information on correct operation of the Payment Terminal no later than when the Payment Terminal is handed over.

4.2. During the Lease (the period of time for which the Package is stipulated) the Company may replace the Payment Terminal with another type of Payment Terminal, including accessories and software.

4.3. If the Customer orders a Package that includes a Payment Terminal, then the Customer undertakes to:

a) only use the Payment Terminal and the accessories thereto for the purpose of accepting payment cards and any other purpose as may first be approved by the Company;

b) follow the instructions for the operation of the Payment Terminal;

c) make sure the accessories supplied with the Payment Terminal are only used in the Payment Terminal;

d) accept through the Payment Terminal only those cards specified in the contract with the Payment Service Provider and those of which the acceptance has been stipulated with the Company in writing;

e) only use Company-approved software in the Payment Terminal, compile none of the software, make no copies thereof and not interfere with the Payment Terminal in any manner;

f) put up with the disabling of the Payment Terminal and/or the accessories thereto for any necessary period of time, in particular if illegal conduct or any breach of this Contract is suspected or upon the direction of the Provider of the payment service provided through the Payment Terminal or because of a delay in the payment of an amount due to the Company or as a result of the termination of this Contract;

g) arrange, at his/her own expense, for any consumables, i.e. ink ribbons and paper rolls, of the required quality in order to ensure that the Payment Terminal operates duly and without errors;

h) notify the Company without undue delay in the event that he/she changes the subject of his/her business activity, terminates this activity or changes or closes his/her place of business.

4.4. If the Customer orders a Package that includes the Lease of a Payment Terminal, then the Customer undertakes to:

a) carry out regular maintenance of the Payment Terminal and protect the same against damage, destruction or loss and maintain possession of the Payment Terminal throughout the Lease of the same, and in particular not to pledge, lend and charge the Payment Terminal with third-party rights;

b) allow the Company to check, during the Customer’s business hours, the Payment Terminal’s condition and placement and check whether the Payment Terminal is in use in accordance with this Contract and the contract made between the Customer and the Payment Service Provider;

c) contact the Company without undue delay in the event of malfunction, damage, loss or theft of the Payment Terminal;

d) if the Payment Terminal gets damaged, lost, destroyed or otherwise depreciated by the Customer and/or the Customer fails to return the Payment Terminal to the Company by the 15th day from the end of the period of time for which the provision of the Package plus Lease is stipulated, the Company shall have the right to be paid a contractual penalty of CZK 8,000 for each such Payment Terminal and the right to be paid a contractual penalty at 0.5% of the outstanding amount for each day of delay in the payment of the contractual penalty or part thereof. The penalty falls due on the 15th day from when the request for payment reaches the Customer. The Company has no obligation to provide the Customer with a new Payment Terminal until the Customer has fully paid the aforesaid contractual penalty or any other amount payable to the Company.

4.5. If, after the period of time for which the Package is stipulated, the Customer suspends the use of the Package for a definite period of time and asks the Company to continue the Lease of the Payment Terminal for the time during which the use of the Package is suspended, then the Customer must pay the Company a monthly rent as per the currently valid Price List.

5. SALES AND CALCULATION OF PRICE FOR PACKAGE

5.1. The Parties agree that the price for a Package depends on the Customer’s Sales. The Customer agrees that the Price List prices for the Package are specified for different bands of sales, resulting in the fact that following the calculation of the Sales for the reporting period as per 5.5 of these Terms and Conditions, the Customer will be invoiced, for the following calendar month, the price of the Package as per the pertinent band of sales achieved by the Customer in the immediately previous reporting period. If the Customer has arranged an annual subscription and fails to realise the defined Sales during any reporting period, the Customer will be invoiced, for the month following the pertinent reporting period, an amount equal to the difference between 1/12 of the price list price of the Package defined for the pertinent sales band which the Customer actually reaches in the reporting period and 1/12 of the price of the Package paid by the Customer for the annual subscription (the “Price Difference”); the Price Difference may be invoiced to the Customer either immediately after the end of the pertinent reporting period or when the Price Difference for one or more months during the pertinent reporting period of the annual subscription reaches, when aggregated, a sum no lower than CZK 1,000 or after the end of the given annual subscription when aggregated for all the as yet unpaid Price Differences payable to the Company for the given annual subscription of the Customer, always as the Company may choose.

5.2. If the use of multiple Payment Terminals for a single Licence is stipulated for the Customer’s Package, each band of sales is multiplied by the number of Payment Terminals stipulated for the Licence and the total price shall be arrived at by comparing that multiple with the sum of the Sales realised on each of those Payment Terminals.

5.3. If the Customer uses multiple Packages, the Customer shall be responsible for the correct assignment of the Payment Terminals to the pertinent Packages and shall notify the Company of any change without undue delay.

5.4. The Customer hereby grants the Company his/her express consent to the Company ascertaining the Customer’s Sales in order to determine the price for the Package.

5.5. 5.5. The Parties agree that the first calculation of the Sales-based Package price will take place 3 (three) calendar months after the activation of payment services for the Customer, with the next Sales-based Package price always to be calculated after each next calendar month. Three previous calendar months are always the reporting period for calculating the Sales-based Package price.

5.6. If the annual subscription fee for the Package is renewed, the price of the Package for the next period shall be ascertained using the Customer’s Sales for the last three calendar months as realised in the immediately previous annual subscription of the Customer.

5.7. For the avoidance of doubt the Parties state that in the prolonged period the price of the Sales-based Package shall be calculated by analogy to 5.1–5.6 of these Terms and Conditions.

6. CHANGES TO PACKAGE

6.1. The Customer may request that the Licence ordered as part of a Package be changed by the Company for the next period. Such a request must be made no later than ten days prior to the end of the current period for which the Package is stipulated. Along with the change to the Licence, the Customer must sign a request for amendment of the contract entered into with the Payment Service Provider, such amendment to update the Transaction Fees as per the current Price List valid as of the date on which the Customer requests a change to the Licence.

6.2. If the Customer requests that the Licence ordered as part of the Package be changed to a lower-class Licence, the soonest moment when the change to the Licence may take effect is the moment when the change is approved by the Payment Service Provider. Unless the request is approved by the end of the pertinent calendar month, the Licence is taken to be changed no sooner than the moment when the request is approved by the Payment Service Provider.

7. RIGHTS AND OBLIGATIONS OF THE CUSTOMER

7.1. The Customer may only use the Licence and/or the Payment Terminal for his/her own needs and only for the purpose for which the Licence and/or the Payment Terminal are/is designed.

7.2. The Customer acknowledges that the Software Product is owned by the Company and protected by legal copyright.

7.3. The Customer is forbidden to tamper with the Software Product and/or the Payment Terminal in any way, make any modifications thereto that are not related to the Customer’s settings, create copies, duplicates or imitations of the Software Product and/or the Payment Terminal or interfere with the functioning of the Software Product and/or the Payment Terminal in any way or perform any reverse engineering. The Customer is not entitled to lease out or transfer the Licence and/or the leased Payment Terminal without the prior written consent of the Company.

7.4. A Customer who has bought a Licence and/or a Package containing the Licence is provided with a Software Product Licence which is non-transferable, non-exclusive and valid in the Czech Republic and is provided only insofar as to permit the proper use of the Software Product by the Customer. The period of time for which the Licence and/or the Package are/is provided is set out in the Licensing Agreement or the contract by which the Customer ordered the Package from the Company.

7.5. Should the Customer so wish, a Company representative shall carry out the installation and basic configuration of the Licence (customisation) and/or the installation of the Payment Terminal at the price for the Service ordered, and/or for a fee in the amount as per the current valid Price List.

7.6. The Customer is under an obligation to inform the Company without undue delay of the following:

a) any change in his/her details, i.e. in his/her title/trade name/name, registered office/place of business or, where appropriate, other details provided to the Company in connection with the Licensing Agreement, the Payment Terminal or any change thereof or during the performance of any Service provided by the Company;

b) any change of the contact person or replacement or discharge of the proxy or expiry of any authorisation which was granted by the Customer and which may be used when dealing with the Company; this obligation also applies to an authorisation, if any, to act on behalf of the Customer which has not yet been entered in the Commercial Register, another public register or a similar foreign register;

c) any facts and/or changes which may be reasonably assumed to have a significant impact on the provision of the Licence or the Payment Terminal or any changes or events which it may be reasonably assumed can adversely affect the Customer’s ability to fulfil his/her obligations to the Company (e.g. a request to open insolvency or enforcement proceedings against the Customer, etc.).

7.7. The Customer is required to acquaint him-/herself without undue delay with the content of every message delivered to the Customer by the Company, including messages delivered to his/her customer account accessible on the Company’s web interface. To this end, the Customer is under an obligation to check his/her customer account regularly.

7.8. The Customer is not entitled to use the Software Product and/or the Payment Terminal in a way that could destroy, disable, overload, disrupt, damage or otherwise restrict or threaten the Software Product and/or the Payment Terminal or the data network with which the Customer works when using the Software Product and/or the Payment Terminal, or which could prevent, restrict or threaten the use of the Software Product and/or payment services by other Customers.

7.9. The Customer is not entitled to use the logo, name, trade name or other details of the Company on any of his/her advertising or other materials without the prior written consent of the Company.

7.10. The Customer is encouraged to back up and archive data obtained through the Software Product and/or the Payment Terminal regularly and then verify whether an error-free data backup was created.

7.11. The Customer acknowledges that his/her possible failure to use the Licence and/or the Payment Terminal does not give rise to any compensation, refund, discount or reduction in the price for the Licence and/or the Package or a refund of any payments by the Company.

8. RIGHTS AND OBLIGATIONS OF THE COMPANY

8.1. Because of the nature of the Software Product and the Package, the Company reserves the right to:

a) alter the Software Product and/or the Package or any part thereof so as to improve same;

b) change the technical parameters of the Software Product and/or the Package or any part thereof if this is necessary for their full functionality or their improvement.

8.2. The Company is entitled to suspend or restrict the operation of the Software Product and/or the Payment Terminal for the period necessary for maintenance or repair of the Software Product in the event of a breach of the security and integrity of the Software Product, for data protection purposes or when a threat or vulnerability is detected, or upon the decision of a state authority, in emergency situations or because of other important public interests.

8.3. The Company is also entitled to restrict or suspend the operation of the Licence and/or the Payment Terminal without prior notice to the Customer if:

a) the Customer fails to pay in due manner and time the price for the Licence and/or the Package and/or any other amount due to the Company;

b) the Customer uses the Software Product and/or the Payment Terminal in a way that may negatively affect the functioning of the Software Product and/or the Payment Terminal or their integrity or quality with respect to other Customers;

c) the Customer is suspected to be misusing the Licence provided and/or the Payment Terminal.

8.4. As soon as the reasons for restricting or suspending the operation of the Software Product (the Licence) and/or the Payment Terminal as per 8.2 of the present Terms and Conditions and/or 8.3 of the Terms and Conditions cease to exist, the Company will restore the functioning of the Software Product and/or the Payment Terminal for the Customer without undue delay. During the time of restricted or suspended functioning of the Software Product (the Licence) and/or the Payment Terminal for the reasons stated in 8.2 of the present Terms and Conditions and/or 8.3 of the present Terms and Conditions, the Customer pays the full price for the Licence and/or the Package. The Company is entitled, in cases where the operation was restricted or suspended for the reasons stated in 8.3 of the present Terms and Conditions, to request the Customer to pay the costs related to the re-commissioning of the Licence and/or the Payment Terminal.

8.5. The Company is entitled to collect, process and store information about the use and operation of the Software Product and/or the Payment Terminal.

9. CUSTOMER’S PERSONAL, IDENTIFICATION AND OPERATING DATA

9.1. The personal data includes, in particular, the name and surname, title, date of birth, residence or other address provided by the Customer, telephone number, email address, data collected in marketing surveys, bank account details or payment history, etc. The identification data includes, in particular, the trade name, title, registered office, place of business, company registration number, telephone number, email address, data collected by marketing surveys, bank account details or payment history, etc. The operational data includes all data collected or processed by the Company during the use of the Licence and/or the Payment Terminal by the Customer, with the exception of the personal and identification data.

9.2. The Company collects, processes and protects the personal data in accordance with the GDPR. Detailed information on the handling of personal data and its protection is available at https://dotykacka.cz/gdpr/.

9.3. The Customer’s personal, identification and operating data is collected and processed, in particular, for the following purposes:

a) a purpose to which the Customer has given his/her explicit consent;

b) processing necessary for the Licensing Agreement to be performed and/or the Package to be provided, including the intermediation of the making of the contract with the Payment Service Provider;

c) protection of the rights and legitimate interests of the Company or third parties;

d) fulfilment of the Company’s obligations required by specific legislation;

processing necessary to carry out tasks in the public interest or in the exercise of official authority for which the data controller is responsible;

9.4. The Customer gives his/her consent to the Company for the processing and categorisation of the Customer’s identification and operating data.

9.5. If no longer period is stipulated by specific legislation or the Company’s documentation related to the processing and protection of personal data, the Customer’s personal, identification and operating data is processed and stored for the duration of the Licensing Agreement and/or the contract under which the Package is provided to the Customer and a maximum period of ten years following the expiry of the Licensing Agreement and/or the provision of the Package.

9.6. The Customer’s personal, identification and operating data is collected and processed directly by the Company, Representatives or other entities with which an agreement to this end has been concluded by the Company, in the European Union (and the Czech Republic in particular), electronically in an automated or manual manner or manually in a hard copy.

9.7. The Customer declares that:

a) he/she was duly informed about the collection, processing and storage of personal, identification and operating data;

b) he/she was informed of the fact that he/she provides the personal, identification and operating data to the Company of his/her own accord and, in the event that he/she has provided his/her consent to the Company for the processing of personal data beyond the minimum necessary for the performance of the Licensing Agreement and/or the provision of the Package, such consent to the processing of personal data may be withdrawn by a written notice delivered to the Company address designated for this purpose and provided on the Company website;

c) he/she is hereby informed by the Company about his/her right of access to his/her personal data processed by the Company, right to data correction and deletion, right to the restriction of data processing, right to transfer his/her personal data, right to object to the processing of his/her personal data and right to make a complaint to the supervisory authority, which is the Office for the Protection of Personal Data, with its seat at Pplk. Sochora 27, Prague 7, postal code 170 00.

10. DATA STORED BY THE CUSTOMER

10.1. The Company does not check the data stored or downloaded by the Customer from the Internet to the restricted area (the cloud).

10.2. Therefore, the Customer assumes full responsibility for the security of stored or downloaded data. The Customer undertakes to comply with the legal regulations, in particular the GDPR, including obtaining consent from third parties, if necessary.

10.3. If the Customer’s cloud service is activated, all information collected by the Company is stored and kept in secure systems accessible only to authorised employees of the Company in the event of maintenance, etc. The systems are subject to permanent surveillance to ensure confidentiality, integrity and information security, including protection against outside intrusion. The Company complies with all security regulations laid down by laws and legal regulations in force in the Czech Republic.

10.4. When using cloud services (e.g. POS synchronisation, data backup, and work with cloud modules), “cookies” are used. The term “cookie” refers to data that is active only during a single user session and which is sent from a website to the user’s computer for faster identification. By changing the browser settings, the Customer may disable the cookies at any time. This change may result in certain functions of the Software Product and/or the Payment Terminal being slowed down or access to them prevented.

11. COMMUNICATION WITH THE CUSTOMER, DELIVERY

11.1. The Company is entitled to send the Customer messages or information related to the Licensing Agreement and/or the Package, the present Terms and Conditions and all matters related to the Company’s Products. The Company is entitled to send such messages or information to the Customer through his/her customer account accessible on the Company’s web interface, by email or by other technical means.

11.2. The Customer sends messages and communications to the Company by postal services or email to the address of the Company which is indicated on the Company website to this end.

11.3. The messages or communications are considered as having been delivered when entering an area within reach of the recipient. If a message or communication is delivered to the Customer’s customer account accessible on the Company’s web interface, it is noted that it is considered as having been delivered when it is entered into the Customer’s customer account accessible on the Company’s web interface. If the Company delivers a message or communication to the Customer’s email address, this email message is considered as having been delivered when it is properly dispatched from the email address of the Company. The responsibility for the fact that the email sent to the Customer by the Company was delivered to, for example, the Customer’s spam folder and, for that reason, the Customer failed to read it, is not borne by the Company.

12. LIABILITY FOR DEFECTS, WARRANTY

12.1. The Company provides a warranty for the error-free functioning of the Software Product; the Company is responsible only for the functioning of the current versions of the Software Product and not for defects in earlier versions for the duration of the Licensing Agreement and/or the Package, provided that there was no breach of the obligations by the Customer.

12.2. The Parties agree that the Customer cannot withdraw from the Licensing Agreement and/or the contract for the provision of the Package or demand a price discount in the event that the Software Product is defective, the defect can be remedied, and the Company is prepared to:

a) remedy such a defect;

b) take steps towards remedying the defect of the Software Product without undue delay; and

c) remedy the defect within a reasonable period.

12.3. The Customer acknowledges that the proper functioning of the Software Product is guaranteed by the Company only in relation to such Goods as are supplied by the Company and run on the Android operating system. The Android operating system is part of the Goods supplied by the Company. The Customer acknowledges that the proper functioning of the Payment Terminal’s software is guaranteed by the Company only in relation to the Payment Terminal that is supplied by the Company and/or Dotypay s.r.o., company ID: 255 95 091.

12.4. The Customer is not eligible for a warranty if the Licence is not properly registered or upgraded, has expired, or the Customer has failed to duly meet his/her obligations to the Company. The Customer is not eligible for any warranty in respect of the Payment Terminal’s software if the software is not properly registered or upgraded, the period of time stipulated for the provision of the Package has expired, or the Customer has failed to duly meet his/her obligations to the Company.

12.5. The Customer is under an obligation to provide the Company with all the assistance necessary to remedy defects in the Software Product and/or the Payment Terminal or the software thereof.

12.6. The Company does not guarantee that the Software Product and/or the Payment Terminal meet all the requirements of the Customer. The warranty does not cover the following, which cannot be considered as a defect of the Software Product and/or the Payment Terminal or a defect or damage caused by the Software Product and/or the Payment Terminal:

a) those cases in which the Software Product and/or the Payment Terminal are/is used contrary to the documentation;

b) the absence of properties or functions that are not listed in the documentation;

c) the fact that the Software Product and/or the Payment Terminal does not reflect legislative changes that were not known to the Company at the time of its development;

d) those cases in which the Licence is run on unsuitable hardware or hardware that does not comply with the current recommended system requirements indicated on the Company website;

e) the fact that the Software Product does not work on hardware that is not generally available at the time of its development, or on hardware or in an operating system that is not supported;

f) those cases in which the Software Product is run on an incorrectly configured computer or incorrectly set-up computer network;

g) those cases in which the Software Product and/or the Payment Terminal are/is used together with third-party programs that prevent their error-free operation;

h) those cases in which the Customer intervenes in the database files by means other than the Software Product and/or the Payment Terminal or the software thereof supplied.

13. COMPLAINTS

13.1. More detailed conditions for complaints may be set out in the Refunds & Returns Policy of the Company, available on the Company website.

13.2. Complaints about the Software Product and/or the Payment Terminal can be made in writing to the Company’s address provided for this purpose on the Company website.

13.3. The complaint must contain the following details:

a) the Customer’s identification data, including contact details of the Customer’s contact person;

b) the specification of the Licence and a description of the defect claimed to be in the Software Product and/or the specification of the Payment Terminal and a description of the defect claimed to be in the Payment Terminal;

c) proof of purchase of the Licence and/or the Package.

13.4. If, for the Licence or the Payment Terminal, a special list of authorised warranty centres is specified, the Customer may exercise his/her right to have warranty repairs performed in these specialised warranty service shops.

13.5. A properly filed complaint will be dealt with in accordance with the Refunds & Returns Policy available on the Company website, the present Terms and Conditions and the Civil Code.

13.6. Defects in the functionality of the Software Product that are the subject of a complaint will be verified. The Customer will be informed about the results of the investigation through the Customer’s account available on the Company’s web interface, by email or in writing. If the complaint is recognised as legitimate, the Customer will be provided with a free upgrade of the Software Product that addresses the defect that was the subject of the complaint.

13.7. If it cannot be demonstrated that the defect in the Software Product was caused by the Company or if the complaint about the Software Product and/or the Payment Terminal is unjustified, the Customer will be charged for the work associated with identifying the cause and confirming or eliminating the defects complained about by the Customer in accordance with the Price List valid at the time when these tasks are performed.

14. COMPENSATION FOR LOSS OR DAMAGE

14.1. The Company is not liable for any loss or damage that results from a breach of the Customer’s obligations under the Licensing Agreement, the Contract or the present Terms and Conditions, or if the Customer contributed by his/her wrongful conduct to the loss or damage that was suffered.

14.2. The Company is not liable for damage arising as a result of the interruption or restriction of the operation of the Software Product and/or the Payment Terminal for the reasons stated in 8.2 and 8.3 of the present Terms and Conditions.

14.3. The Company shall not be liable for any loss or damage suffered as a result of circumstances excluding liability under the relevant provisions of the Civil Code. A fault in the means of remote communication (e.g. internet connection) used by the Customer or the Company and/or a failure of any technical device not caused by the Company is also considered by the Parties to be a circumstance excluding liability of the Company.

14.4. The Company is not liable for the loss of, or damage to, data which was not properly backed up by the Customer.

14.5. The Company bears no liability for any lost profit of the Customer and any special, indirect, economic or consequential loss the Customer may suffer in connection with the Licensing Agreement, the Package, the Payment Terminal or any other Product.

14.6. The Company is not liable for damage that does not arise directly in connection with a breach of a legal obligation on the part of the Company.

14.7. The overall liability of the Company for damages, if any, is limited to an amount equal to the price excluding VAT paid by the Customer to the Company for the Licence or the Package not exceeding the amount for the last twelve months of use of the Licence or the Package prior to such a claim being raised against the Company by the Customer. The Company is not liable for any damages incurred by the Customer in connection with the Software Product and/or the Payment Terminal in the event that the Customer uses the Software Product and/or any other Product provided by the Company free of charge.

14.8. The Company is not liable for late delivery of the Software Product and/or the Payment Terminal or the non-delivery thereof for reasons that are objectively beyond the Company’s control.

14.9. The Customer takes note of the fact that the communication between the Company and the Customer is not encrypted or otherwise secured against disclosure to third parties unless otherwise stated in the Licensing Agreement, any other Contract entered into with the Company or the present Terms and Conditions. In this regard, the Company is not liable for any damage incurred as a result of unauthorised access to electronic communications between the Company and the Customer by third parties.

14.10. The Company is not responsible for the proper delivery of an email to
the email address of the Customer and it is not liable for any damage incurred by the Customer as a result of a failure to acquaint him-/herself with an email from the Company, e.g. because the email sent by the Company was delivered to the Customer’s spam folder. The Customer is responsible for checking all its email folders, as well as maintaining sufficient email capacity.

14.11. The Company is not liable for damage arising as a result of an outage of the system of electronic records of sales or any other failure, either partial or complete, of the system of electronic records of sales on the part of the Ministry of Finance of the Czech Republic.

14.12. The Company may not be held liable for any loss caused as a result of a payment system failure or caused by reasons on the part of the Payment Service Provider.

14.13. The Company bears no liability for the Software Product and the Payment Terminal being compatible with the Customer’s hardware and software, in particular where the Customer does not order the full package of the Products on offer from the Company or fails to follow the Product’s directions for use as specified by the Company and/or the manufacturer of the Goods.

15. DURATION OF CONTRACTUAL RELATION FOR SOFTWARE PRODUCTS AND/OR PROVISION OF PACKAGE

15.1. The Licensing Agreement and/or the Contract under which the Package is provided to the Customer by the Company are/is entered into for a definite period of time, always for one calendar month, unless the Parties agree otherwise. In the event that the Company plans, because of technological changes and expansion or changes in the Products or the Packages provided by the Company, to cease offering a specific type of Licence and/or the Package which the Customer uses, the Company informs the Customer thereof 1 (one) month prior to doing so. If possible, the Company will offer the Customer an alternative to the Licence and/or the Package which the Company continues to support.

15.2. The Customer may be entitled to a discount in the amount determined by the Company, which will be provided to the Customer only on condition that the Customer duly meets all his/her obligations resulting from the Licensing Agreement or the Contract whereby the Package is provided and/or uses the Licence and/or the Package for a period no shorter than that agreed between the Parties. The agreed period means the period from the first day of the month following the activation of the Licence by the Customer until the last day of the calendar month determined with reference to the period of time for which the Licence and/or the Package have/has been ordered.

15.3. If the Customer fails to comply with the conditions set out by the Company for providing a discount and/or the Contractual Relationship established by the Licensing Agreement and/or the Contract whereby the Package is provided ends before the agreed period for any reason, except for the withdrawal from the Licensing Agreement, or the Contract whereby the Package is provided, by the Customer for agreed reasons, the Company will send the Customer an additional bill whereby the Customer will be charged the difference between the full price, as shown in the order without the application of the discount, and the discounted price that was paid by the Customer for a proportion of the agreed period from the first day of the agreed period to the date of the termination of the Licensing Agreement and/or the Contract whereby the Package is provided. The Customer is under an obligation to pay this difference in price to the Company prior to the date indicated on the relevant invoice.

15.4. The Licensing Agreement and/or the Contract whereby the Package is ordered are/is discharged:

a) upon the expiry of the period for which the fixed-period Licensing Agreement or the Contract whereby the Package is provided was concluded if, no later than ten days before the expiration of this agreed period, the Customer sends a written notice to the Company expressing that he/she is not interested in prolonging this Agreement. If the Customer fails to notify the Company as set out in the previous sentence, the Licensing Agreement and/or the Contract where the Package is provided shall be extended always by the same period of time as that for which the original Licensing Agreement and/or the Contract whereby the Package is provided were/was entered into (i.e. always by the originally stipulated period of time). In such case the other terms and conditions of the existing Licensing Agreement and/or the Package (with account to be taken of the changes pursuant to Article 5 of these Terms and Conditions, Article 16.5 of the Terms and Conditions and Article 15.1 of these Terms and Conditions) shall be preserved;

b) by withdrawal from the Licensing Agreement and/or the contract whereby the Package is provided, for reasons specified in Article 15.5 or 15.6 unless it results from the Contract otherwise;

15.5. The Customer may withdraw from the Licensing Agreement and/or the Contract whereby the Package is provided if the Software Product and/or the Payment Terminal do/does not work properly for longer than 30 days for reasons caused solely by the Company.

15.6. The Company may withdraw from the Licensing Agreement and/or the Contract whereby the Package is provided if:

a) the Customer is in default in the payment of the fee for the Licence or the price for the Package or any amount due to the Company by the Customer for more than ten days despite being notified thereof;

b) the Customer provided false information when concluding the Licensing Agreement and/or any other Contract;

c) the Customer failed to provide the assistance to the Company that was required for the proper performance of the Licensing Agreement and/or the provision of the Package;

d) another person uses the Software Product and/or the leased Payment Terminal without the Customer having obtained the Company’s prior written consent thereto;

e) the Customer uses or distributes tools that could threaten the security, functionality or integrity of the Software Product and/or the Payment Terminal;

f) the Customer otherwise seriously breaches the Licensing Agreement and/or the Contract or the present Terms and Conditions;

g) the Customer has entered into liquidation, faces opened or ongoing insolvency proceedings, has been placed under receivership or is subject to enforcement of a decision or distrainment by selling his/her business.

15.7. Withdrawal from the Licensing Agreement or the Contract whereby the Package is provided only has effect as from the time of withdrawal, that is, the Parties are not required to return to each other any performance provided prior to the withdrawal from the Licensing Agreement and/or the contract whereby the Package is provided. So as to avoid doubt, it is established that the withdrawal from the Licensing Agreement and/or the Contract whereby the Package is provided does not relieve the Customer, in particular, of his/her obligation to pay the Company the price for the Licence and/or the Package provided (or, if applicable, the price for the proportional part thereof for the period up to the date of the early termination of the Agreement by a notice of termination or withdrawal; in the event of withdrawal from the Licensing Agreement and/or the contract whereby the Package is provided except for a withdrawal for causes under Article 15.5 of the present Terms and Conditions, the Customer is not entitled to a discount which the Customer would be entitled to if the Agreement lasted at least for the period agreed by the Parties, i.e. in such a case the Customer is under an obligation to pay the Company the difference in the price for the Licence and/or the Package as invoiced in accordance with Article 15.3 of the present Terms and Conditions), including interest on late payment, if any.

16. FINAL PROVISIONS

16.1. In the event that any provision of the present Terms and Conditions is or becomes invalid, unenforceable or null, such invalidity, unenforceability or nullity will not cause the invalidity, unenforceability or nullity of the remaining provisions of the Terms and Conditions.

16.2. The present Terms and Conditions come into force and take effect on the date of their issue.

16.3. All information relating to the Software Product, the Payment Terminal or other Products, the Terms and Conditions or the Price List will be made available to Customers at the contact points of the Company or its partners (an up-to-date list of contact points shall be posted on the Company’s website), on the Company’s website or in a different appropriate manner.

16.4. The Parties agree that the Terms and Conditions may be amended or supplemented by the Company unilaterally, in particular as a result of changes in legislation or technological changes affecting, for example, the communication with Customers and/or the manner of the conclusion, amendment and termination of the Licensing Agreement and/or any other Contract, but also as a result of extensions or changes to the Products or Packages provided by the Company. The Company is also entitled to change the Terms and Conditions unilaterally if the market conditions or the terms and conditions or licensing conditions of trading partners with whom the Company collaborates and whose services the Company uses to provide services to the Customer change.

16.5. The Customer shall be informed about the amendment and/or supplementation of the Terms and Conditions on the website www.dotykacka.cz, through the customer account of the Customer accessible on the Company’s web interface and/or by email, if an email address was provided when the Licensing Agreement or any other Contract was signed, at least seven days before the date of the coming into effect of the amendment or supplementation of the Terms and Conditions. This amendment or supplementation will not affect the rights and obligations of the Parties arising during the period of validity of the previous version of the Terms and Conditions. The Customer has the right to refuse the amendment or supplementation of the Terms and Conditions and, on the basis of this reason, terminate the Licensing Agreement and/or the contract whereby the Package is provided in writing before the date of the coming into effect of the revised and/or supplemented Terms and Conditions at the latest. In the event that the Customer does not exercise this right before the date of the coming into effect of the revised and/or supplemented Terms and Conditions, it is assumed that he/she has expressed his/her consent to the content of the amended or supplemented Terms and Conditions. The price for the Licence for the agreed duration of the Contract cannot be unilaterally increased on the basis of an amendment to the Terms and Conditions. The amended price shall not be applicable until the new period of the duration of the Contract pursuant to 15.4(a); this is without prejudice to Article 5 of these Terms and Conditions.

16.6. The Customer acknowledges and agrees that the Company is entitled to communicate amendments to the Terms and Conditions made in favour of the Customer in a manner set forth in Art. 16.5 of the present Terms and Conditions even within a period shorter than the period specified in the given article and that amendments that are not to the detriment of the Customer do not give rise to the right to terminate the Licensing Agreement and/or the contract whereby the Package is provided pursuant to
Article 16.5 of the present Terms and Conditions.

16.7. The rights and obligations of the Parties not governed by the present Terms and Conditions shall be governed by the relevant provisions of the law, in particular by the applicable provisions of the Civil Code.

16.8. The Parties agree that all communication between them shall be in the Czech language.

16.9. In accordance with Section 89a of the Code of Civil Procedure, the Parties agree that the District Court for Prague 5, or the Metropolitan Court in Prague if subject matter jurisdiction is vested in regional courts for first instance hearings, shall have local jurisdiction over any litigation of disputes arising under or in connection with the Licensing Agreement and/or any other Contract, and that these disputes shall be settled exclusively under the laws of the Czech Republic.

16.10. The Parties exclude the application of the provisions of Section 557 of the Civil Code to the rights and obligations arising from the Licensing Agreement and/or any other Contract.

16.11. Pursuant to Section 558(2) of the Civil Code, the Parties exclude the possibility that, beyond the scope of the express provisions of the Licensing Agreement and/or any other Contract, any of the rights and obligations are drawn from practice established by them or from generally accepted commercial practices relating to the subject matter of the Licensing Agreement and/or any other Contract.