Terms & Conditions
Effective Date: April 1, 2020
1. INTRODUCTORY PROVISIONS
1.1 These Terms and Conditions stipulate the general rights and conditions of Stratox that apply to the Customer in relation to the Services provided.
1.2 The terms used in these Terms and Conditions have their meaning specified in these Terms and Conditions, the Order Form or other documents to which these Terms and Conditions expressly refer.
Additional Service: a specific type of Service, ordered via HelpDesk or Platform and provided according to the Contract concluded between Stratox and the Customer, which is prized for in accordance with the relevant stipulated Fee;
Business Day: any day from Monday to Friday except those days in the Czech Republic when banks are closed due to public holidays;
Business Hours: a time between 9:00 – 18:00 CET/CEST on a Business Day;
Civil Code: Act No. 89/2012 Coll., Civil Code, as amended;
Contract: means Order Form and these Terms and Conditions unless referred to each of them separately;
Contracting Parties: both Stratox and the Customer together; the term Contracting Party refers to Stratox and the Customer, or any of these two (according to the context of the provision);
Copyright Act: Act No. 121/2000 Coll., on copyright, rights related to copyright, and the amendments to certain Acts, as amended;
Copyright Work: work in the meaning of Section 2 of the Copyright Act; a computer programme is also considered to be Copyright Work in the meaning of Section 2 (2) of the Copyright Act;
Customer: a person, who concludes a Contract with Stratox;
Database: a set of systematically or methodically organized elements within the meaning of Section 88 of the Copyright Act; a Database also may or may not be a collected work within the meaning of Section 2 (2) of the Copyright Act;
Applicable Data Protection Legislation: GDPR and any other laws relating to the processing of Personal data applicable during the term of this Contract;
Effective Date: means date of conclusion of the Contract by Stratox and Customer;
Fee(s): means relevant fee for each Service and any applicable taxes, which are set forth at the Fee List;
Fee List: a document, located on the Platform, which contains information about pricing options. Fee for the Services as set forth on the following web page https://codenow.com;
General availability: Service is designed to be available in 24/7 regime;
GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to with the processing of personal data and the free movement of such data and the repeal of Directive 95/46/EC;
HelpDesk: a contact point to Stratox, which may be accessed on the URL https://www.codenow.com, via e-mail: [email protected] or by phone +420 736 790 920;
Invoice: a tax certificate compliant with the relevant taxing and accounting legislation of the Czech Republic;
Order Form: order form for the provision of Service(s) entered into between Stratox and you as the Customer;
Planned Maintenance: a time period reserved for the maintenance of Services and/or infrastructure, which will be scheduled outside Business Hours. The Customer will be notified at least 3 days in advance via e-mail in case that Planned Maintenance can result in outage of the Service;
Platform: Stratox self-service platform which allows the Customer to access and monitor Services. The Platform is accessible from https://www.codenow.com, and its full functionality is accessible in the password protected section of the Customer’ account on the Platform once the Customer (specifically the User acting on behalf of the Customer) has duly verified their identity;
Stratox: Stratox Cloud Native s.r.o., with its registered office at Novodvorská 1062/12, Lhotka, 142 00 Praha 4, ID No.: 07840420, Tax ID No.: CZ 078 40 420, registered in the Commercial Register with the Municipal Court in Prague, under section C, number 308537;
Service(s): means the service(s) provided on the CodeNOW platform as set forth on the following web page https://www.codenow.com, which might be changed by Stratox from time to time (i) by including the additional Services to the above-specified web page or (ii) amending the specification of Services in the Service Datasheet;
Service Datasheet: a document, located on the Platform, which might contain some of the following information: (i) the conditions for the provision of the Service; (ii) the parameters of the Service; (iii) the stipulated standards of the Service; and (iii) permitted use of the Platform and/or Service;
Service Enabled Date: the date on which the Customer receives the access to the Services, and which is defined in the Contract;
SLA: means the service level agreement, which might be provided from time to time to each of the Services and set forth the guaranteed Service availability;
Software: a sequence of instructions outlining the realisation of certain tasks by the computer in relation to the CodeNOW, which includes all components of the CodeNOW programme, its source code and object code, relevant preparatory concept materials and documentation, graphical and other elements of its user interface, and all other components or files forming part of the computer programme; the term Software does not include customer data processed by the computer programme, unless expressly stipulated otherwise;
System Admin: an employee of the Customer (provided to Stratox in writing), who is entitled to order Technical Support;
Technical Support: second level support, which will be provided by Stratox to the Customer in case of significant errors of the provided Services;
Terms and Conditions: these Terms and Conditions for CodeNOW;
Trial period: a definite period of 14 consecutive days starting on the Trial Date and ending on the 14th day following the Trial Date, enables the Customer to try Services for no Fee;
User: a natural person designated by the Customer, who is an end-user of the Services; person who obtained access to the Platform or Services as a result of abuse of the IT infrastructure or the Customer’ login data is also considered to be a User, regardless of whether this access was gained as a result of the Customer’s failure to act with due care or not; all actions performed by any User will be considered as actions of the Customer; the Customer bears full responsibility for all actions of any User;
3. GENERAL TERMS
3.1 Use of the Services is governed by the Order Form and these Terms and Conditions, which are incorporated to the Order Form by the reference and which may be updated from time to time.
3.2 In order to use the Services or the Platform, the Customer is obliged to provide Stratox with the Order Form, which contains order for (i) one of the control plan Services and (ii) at least one of the data plan Services as set forth on the web page https://www.codenow.com and agree to these Terms and Conditions.
3.3 By agreeing to these Terms and Conditions by checking the “I agree to the CodeNOW Terms & Conditions” checkbox at URL https://www.codenow.com the Customer confirms that he read, understood and expressly consented to these Terms and Conditions and has no objection against their content.
3.4 By filing in the Order Form, agreeing to the Terms and Conditions according to Clause 3.3 and clicking the “Confirm Order” button at URL https://www.codenow.com the Customer created an offer for conclusion of the Contract.
3.5 The Contract is concluded by accepting the Order Form from the Customer by Stratox. For avoidance of any doubt Stratox is not obliged to conclude a Contract with the Customer, i.e. to accept an offer from the Customer.
3.6 The Customer is obliged to provide all information necessary to conclude the Contract with Stratox both truthfully and completely.
3.7 After conclusion of the Contract Stratox is obliged (i) to make the Platform available to the Customer and (ii) provide the Customer with the Services stipulated in the Contract.
3.8 Customer is obliged to pay the Fee for the Services provided by Stratox following the conditions specified in the Contract.
3.9 For avoidance of any doubt it is provided that these Terms and Conditions, a draft Contract or any other statements made by Stratox is not public offers to conclude an agreement in the meaning of Section 1780 (1) of the Civil Code. Conversely, a draft of Contract is a call for submissions in the meaning of Section 1780 (2) of the Civil Code, unless Stratox expressly stipulates otherwise in writing.
4. ACCESS TO THE SERVICES AND PLATFORM
4.1 On the Service Enabled Date Stratox will send the Customer login information to allow access to the Customer’s account on the password protected section of the Platform to enable the Services.
4.2 For security reasons, the Customer is obliged to change the password during the first access to the Platform. In addition, the Customer is obliged to keep the login information a secret. If the Customer independently decides not to change its password or provide any other person with the login details, it is understood that the Customer is aware of and shall bear solely the risks of any potential security vulnerabilities. The specific conditions of access to the Platform (if any), and the rights and duties of the Contracting Parties arising from it, are stipulated in the Service Datasheet.
4.3 The Customer may access the Services via the Platform, unless stipulated otherwise on the Service Datasheet or in the Contract.
4.4 After the Contract is concluded and the Platform is made available to the Customer, communication between the Contracting Parties may be made also via the Platform (this having the effect of written legal acts). By concluding the Contract, the Customer understands that any statement or information made available to the Customer via the Platform is considered to be delivered into the sphere of information of the Customer, and that the Customer has the option to become acquainted with this statement or information at will.
4.5 The Contracting Parties will communicate, and Services will be provided in the English or Czech languages.
4.6 The Customer is obliged to verify the integrity, completeness and accuracy of the data which is to be imported onto the Platform.
5. TRIAL PERIOD FOR SERVICES
5.1 Stratox enables the Customer to use and access some of the Services and Platform for no Fee during the Trial Period, which serves the Customer for exploration of the functionality of the Service(s) only.
5.2 The Customer is aware that since the first day after the end of the Trial Period, all the Services will be provided to the Customer for the relevant Fee as further specified in Clause 9.
5.3 If the Customer terminates the Contract during the Trial Period, its usage of the Services will be immediately terminated, and any data provided to the Services by the Customer will be erased from the Platform.
5.4 The Customer is entitled to one Trial Period within 12 consecutive months. Stratox reserves a right to immediately terminate a Trial Period in case the Customer obtains more than one Trial Period within the above specified period.
6. FURTHER PREREQUISITES FOR SERVICE DELIVERY
6.1 The prerequisites for delivery of the Services are stipulated in the Service Datasheets or in these Terms and Conditions. The Customer understands that the fulfilment of these prerequisites is necessary for the due provision of the Service and agrees that the Customer is responsible for the assessment of the fulfilment of such prerequisites for the delivery of the Services, unless stipulated otherwise in the Service Datasheet. Stratox is not liable for the non-provision of a Service or non-provision of a Service to a stipulated quality if any of the prerequisites for the Service delivery are not met at the time that the provision of the Service is ordered by the Customer, or during the provision of Services; in these cases, therefore, the Customer is obliged to pay the Fee for the Services even if the lack of prerequisites causes blocking or impairing of their actual provision.
7. FURTHER OBLIGATIONS OF THE CUSTOMER
7.1 The Customer is obliged to:
7.1.1 comply with the Contract, maintain the validity of all the representations made in these Terms and Conditions and inform Stratox if any of the said representations are no longer valid;
7.1.2 when using the Services comply with all legal regulations related to their activities and the use of the Services;
7.1.3 provide Stratox with all cooperation necessary for the provision of the Services;
7.1.4 maintain the IT infrastructure of the Customer in compliance with the conditions and prerequisites for the provision of the Services set out by Stratox, which may be specified in the Services Datasheet;
7.1.5 inform Stratox about any unauthorised use of the password, or unauthorised access to the Platform.
7.2 Platform is backed up to ensure platform consistency run, however this backup is not possible to use for point in time recovery in general. Therefore, Customer is obliged to make backup of data which is to be provided to Stratox, unless Customer orders additional backup service. Backups of source code repositories are made regularly. Stratox will take no responsibility for the data of the Customer and/or Users uploaded to the Platform.
7.3 The Customer is also aware of the fact that certain notifications from Stratox, which may have an impact on their rights and duties arising from the Contract, are only made available via the Platform and that using the Platform (to a reasonable extent) is thus necessary to allow the exercise of their rights under the Contract.
8. THE SCOPE AND QUALITY OF THE SERVICES, THE SERVICE LEVEL AGREEMENTS
8.1 Stratox guarantees that the Services will be provided in a professional workman-like manner, with the knowledge and skills which are reasonably required to do so, and in the scope stipulated in the Contract.
8.2 In the case the Services were not provided to the stipulated scope or quality, the Customer is obliged to notify Stratox of such a fact and provide Stratox with active cooperation in order to rectify it. Additionally, Stratox will also proactively inform the Customer if they become aware that the Services were not provided to the agreed extent or quality, nonetheless the Customer’s obligation to notify Stratox remains unaffected. In case of any doubt, the information recorded through the monitoring of Services performed by Stratox shall prevail.
9. PRICING AND INVOICING
9.1 Fees for the provision of the Services are stipulated in the Contract and will be paid by the Customer under the conditions specified below in this Clause 9. The Fee does not include Value Added Tax (VAT), which will be calculated according to the applicable laws, and paid together with the payment for the provision of the Service.
9.2 Stratox will activate the Services following the condition that the Fees are provided as of the last day of the Trial Period at the latest (i) to a bank account of Stratox provided in the Contract or in the Service Datasheet or (ii) by using an electronic payment system, if such option is enabled by Stratox. The Fees for the provision of the Services will be charged from the first day following the end of the Trial Period.
9.3 Except as otherwise specified in the Contract payment obligations are non-cancellable and non-refundable and the scope of Services purchased cannot be decreased during the relevant period stated in the Contract.
9.4 Any claim made by the Customer in accordance with Clause 8.2 of these Terms and Conditions does not affect the obligation of the Customer to duly pay the Fees.
9.5 The Fees are payable, and the Invoices for Services are provided either monthly or annually, whichever option is chosen during the conclusion of the Contract:
9.5.1 In case of the monthly payments, the Fees are payable in advance for the following month and the Invoices are issued monthly in arrears for all the Fee provided in the month, and usually no later than on the 15 th day from the day the Fee were paid to Stratox. In the case that a Service was not provided for an entire calendar month then the amount of Fee paid shall be considered as non-cancellable and non-refundable and the amount of Fee already paid will not be returned to the Customer.
9.5.2 In case of the annual payments, the Fees are payable in advance for the following year and the Invoices are issued annually based on the option chosen in the Contract in arrears for all the Fee provided in the year usually no later than on the 15 th day from the day the Fee were paid to Stratox. In the case that a Service was not provided for an entire year, then the amount of Fee paid shall be considered as non-cancellable and non-refundable and the amount of Fee already paid will not be returned to the Customer.
9.6 If no payment option under the Clause 9.5 is selected in the Contract, the Parties agree that the monthly payment option was selected.
9.7 The invoices for the provision of a service, which is not a continual service are issued after provision of such a Service is agreed, unless stipulated otherwise. If Service is being provided for a period that exceeds the end of a calendar month, Stratox shall also be entitled to issue partial Invoices on a monthly basis for such Service provided. These invoices are payable within 14 days after they are made available to the Customer on the Platform.
9.8 Invoicing is performed electronically, and the issued Invoices are provided to the Customer on the Platform.
9.9 In the event that the Customer is in default with the payment of Fees, Stratox is entitled to a contractual late interest penalty comprising 0.05 % of the outstanding amount for each day late.
9.10 In the case the Customer is in default with the payment of the Fees by more than 10 days, Stratox is entitled to restrict or suspend the provision of Services until all the outstanding amounts are duly paid. Stratox shall have the right to request a payment of the full price of the Services, irrespective of any such suspension which occurs during the term of Services.
9.11 The Customer acknowledges that if any Service requires a physical attendance of Stratox experts on the premises of the Customer or other places as the Customer may require, the Customer will be obliged to bear the costs connected with such attendance, i.e. travel costs. Stratox will communicate to the Customer an estimation of such costs in a reasonable advance and reserve a right to postpone the provision of the Services until the cost estimation is approved in writing by the Customer.
10.1 Stratox grants the Customer a non-exclusive licence to use any part of the Service to the extent necessary for the use of the Service for development, testing and operation of applications, or for any other purpose defined in the Service Datasheet. The licence is provided for the time period in which the Customer may use the Service according to the Contract, and also applies to any parts of the Services which are Copyrighted Works or Databases, within the meaning of the Copyright Act.
10.2 Stratox reserves all the rights to Services and their products which were not granted to the Customer according to the Contract.
10.3 The Customer is not allowed to license, sublicense, lease, commercially exploit, sell, transfer, assign Services to a third party unless stipulated otherwise in the Contract.
10.4 No provision of the Contract, the Service Datasheet or any other document shall be interpreted as granting, assigning or transferring to the Customer any intellectual property rights for the Software, know-how, trade secret, documents, techniques, patents, or expertise owned by Stratox or used in providing the Services.
10.5 Stratox may limit the Customer’s use of the Services if the Customer has violated its conditions under the Contract.
10.6 The Customer may not (i) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof, unless this is expressly permitted or required by law or (ii) attempt to disable or circumvent any security mechanisms used by the Services.
11. CONTENT AND TAKE DOWN OBLIGATION
11.1 The Customer is aware that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which it may have access as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated.
11.2 Stratox reserves the right (but shall have no obligation) to remove any or all content from the Services if such content violates effective law or third-party rights.
11.3 The Customer agrees to immediately take down any content that violates effective law or third-party rights upon receiving notification from Stratox. If the Customer does not take down the content within the period provided by Stratox, Stratox might suspend the provision of the Services to the Customer until such content is taken down by the Customer.
11.4 If the Customer becomes aware of any violation of effective law or third-party rights by the User, the Customer shall immediately take down such content of the User or suspend the Users´ account, until such content is deleted.
11.5 The Customer agrees that it is solely responsible for any content that is created, transmitted or displayed while using the Services by the Customer and its Users and for the consequences of the actions related to them.
11.6 The Customer agrees that Stratox has no responsibility or liability for the deletion or failure to store any content and other communications maintained or transmitted through use of the Service by the Customer or its Users.
12. ALTERATIONS TO THE SCOPE OF THE SERVICES AND THE CONTRACT
12.1 The scope of the Services and the Contract may be modified by the process stipulated in these Terms and Conditions, in particular:
12.1.1 by further development of the Services and thus by changing the scope or the characteristics of the Services or by terminating the provision of any of the Services (in part or as a whole) following a unilateral decision by Stratox;
12.1.2 by modification of these Terms and Conditions, Service Datasheets, or any other documents, which have been provided to the Customer in the agreed manner (via the Platform);
12.1.3 by written agreement of the Contracting Parties.
12.2 Stratox may unilaterally update or modify these Terms and Conditions and all other documents, to which these Terms and Conditions refer, in particular the Service Datasheets etc., and are obliged to declare these changes in advance on the Platform, no later than one month before the change is to be effective. These changes are effective from the 1 st day of the calendar month specified by Stratox, on condition that they were duly announced.
12.3 Should the Customer not agree with an update or modification made according to Clause 12.2 above, which is not justified by a relevant change in the legislation occurring during the period of validity of the Contract and which also has an adverse negative impact on the Customer, then the Customer is obliged to notify Stratox to such a fact within 14 days of the announcement of such a change and the Contracting Parties will then suitably initiate negotiations concerning such a change. If Stratox shall insist on such a change, then the Customer may terminate the part of the Service affected by such a change; this termination is effective from the day such a change becomes effective according to Clause 12.2 above, unless the Contracting parties stipulate otherwise. If the Customer does not duly notify Stratox concerning their disagreement with a change that has been duly announced to them, then by this lack of action the Customer accepts the changes made.
12.4 The Customer is entitled during the term of the Contract to place order for other Services or Additional Services by entering into the Contract for additional Services with Stratox by providing Stratox with other Order Form via HelpDesk, through the Platform or by e-mail provided in this Terms and Conditions, if not stated otherwise by Stratox.
13. DISCLAIMERS, LIABILITY AND WARRANTIES
13.1 Stratox is a company duly established and existing under the laws of the Czech Republic, and, as such, has the right to conclude the Contract and duly fulfil their obligations arising from it.
13.2 The Customer declares that at the time the offer to conclude the Contract was made by the Customer, that they are not insolvent or in liquidation, that they are not subject to insolvency proceedings, and that neither the execution nor court enforcement of a decision in relation to their property had been ordered.
13.3 The Customer is obliged to inform Stratox regarding their insolvency or impeding insolvency, the initiation of insolvency proceedings against them, or the execution or court enforcement of a decision being ordered in relation to its property, or concerning the threat of this condition (the issuance of a decision, which in all probability, will not be fulfilled by the Customer) within 5 days of the moment the Customer became aware or could have reasonably become aware of this fact.
13.4 If the declaration of the Customer made according to Clause 13.2 of these Terms and Conditions was untrue, or if the obligation of the Customer stipulated in Clause 13.3 of these Terms and Conditions is violated, Stratox may immediately rescind the Contract.
13.5 The Customer is aware of the fact that their capacity to use the Services are, in addition to the due performance of Stratox, also dependent on the following conditions, the fulfilment of which Stratox is not liable for, in particular the following:
13.5.1 the availability of the Customer’s internet connection (and also a back-up internet connection) with sufficient capacity for the provision of the Services;
13.5.2 the due functioning of the equipment used by the Customer when using the Services (Software, hardware etc.);
13.5.3 the due functioning of the internet connection between the Customer and the data centre from where the Service (or a part) are provided;
13.5.4 the provision of due cooperation by the Customer; and
13.5.5 the fulfilment of the prerequisites for the provision of the Service in compliance with Clause 6.1 of these Terms and Conditions.
13.6 Based on the above, the Customer, therefore, understands that Stratox is liable only for the fulfilment of their duties as stipulated in the Contract. In relation to the provision of Services, Stratox does not provide any warranties, moreover no provision of the Contract, or any other document referred to by these Terms and conditions may be interpreted as providing any warranties other than these as specified in Clause 8.1 of these Terms and Conditions.
13.7 The Contracting Parties have agreed that the liability of Stratox for any harm (except for harm caused as a result of gross negligence or wilful misconduct) arising out of a single breach of the Contract by Stratox will be limited to 100 % of the sums paid to Stratox during the previous 12 months of effectiveness of the Contract (or 100 % of the sums paid during the effectiveness of the Contract, if the Contract was effective for less than 12 months), and that the aggregate liability of Stratox for any harm arising out of all the breaches of the Contract by Stratox (except for harm caused as a result of gross negligence or wilful misconduct) will be limited to 100 % of the sums paid to Stratox during the period of effectiveness of the Contract.
13.8 Stratox is not liable for the due selection of Services from their portfolio by the Customer, the suitability of those Services for the Customer, the convenience of these Services for the needs of the Customer, the fitness of the Services for the purpose intended by the Customer, or the fulfilment of the Customer’s requirements or expectations.
13.9 Stratox is not liable for any lost profit, loss of revenues, loss of data, or indirect, special or incidental loss incurred. Further, Stratox is not liable for any loss, which could not be reasonably foreseen by them.
14. TECHNICAL SUPPORT
14.1 Stratox will provide the Customer with Technical Support during Business Hours during which, System Admin(s) of the Customer may contact Stratox HelpDesk in case of significant errors in providing the Services, if the System Admin of the Customer is unable to solve the issue.
14.2 Stratox will make their best effort to respond by the end of the next Business Day to a request submitted during the Business Hours by the Customer to the HelpDesk.
14.3 The Customer acknowledges that during the Planned Maintenance, the Services may be unavailable and such unavailability shall not be deemed as a breach of Contract.
15. CONFIDENTIAL INFORMATION
15.1 The Contracting Parties hereby declare and confirm that the information included in the Contract, Service Datasheets, and any other technical and business information obtained from the other Contracting Party or collaborating third parties in connection with the performance of the Contract whether during the performance of the Contract, before the conclusion of the Contract, or after the Contract is terminated are of a confidential nature, and therefore the Contracting Parties are obliged to keep such information confidential and may not disclose or make such information available to any third party, unless specifically agreed otherwise in writing.
15.2 Stratox may use the confidential information of the Customer and disclose it to the third parties used for performance of the Contract according to Clause 15 of these Terms and Conditions or to legal representatives, employees, corporate bodies or their members, or the bodies or their members/employees of companies which are part of the group of companies, to which Stratox belongs, provided that the following conditions are met:
15.2.1 the person or subject to whom or to which the confidential information is to be disclosed is bound by a reasonable contractual or statutory obligation to maintain the disclosed information as confidential at least to the extent to which Stratox is bound by these Terms and Conditions, and use the said only for the purposes specified herein;
15.2.2 the person or subject to whom or to which confidential information is to be disclosed is informed regarding the obligation to maintain the secrecy of such confidential information; and
15.2.3 the disclosure is made only to the extent necessary for such a person or subject to cooperate or take part in achieving the successful performance of the Services.
15.3 Notwithstanding the form in which the information is recorded, confidential information includes all information provided by the Contracting Parties, if it relates to the Contract and its performance, or to any of the Contracting Parties (particularly trade secrets, information concerning the Contracting Parties’ activities, structure, profit/loss, know-how), as well as information subject to special secrecy procedures in accordance with the law (in particular confidential information, personal data).
15.4 If any confidential information is accessed without due authorization, the Contracting Party that possessed such confidential information on the basis of the Contract must notify the other Contracting Party and make every effort to ensure that such information is not made available to unauthorized persons.
15.5 The protection of information does not pertain to cases where:
15.5.1 the Contracting Party demonstrates that this information is publicly accessible without such accessibility being caused by the Contracting Party itself;
15.5.2 the Contracting Party demonstrates that it had access to the confidential information before receiving it from the other Contracting Party, even if this was before the effective date of the Contract, and that it did not gain access to the respective information using illegal means;
15.5.3 the Contracting Party obtains written consent from the other Contracting Party, to whom this information pertains, to make the given information accessible; or
15.5.4 making such confidential information accessible is required by law or by a binding decision made by a competent public authority. If so, the disclosing Contracting Party is obliged to inform the other Contracting Party that the confidential information is to be disclosed or that it has been disclosed, unless this is precluded by a legal obligation or binding decision of an authorised body.
15.6 Any Contracting Party shall treat any confidential information provided by the other Contracting Party or otherwise acquired, as if it were their own confidential information, and preserve the secrecy of such confidential information and carry out all contractual and technical measures to prevent its misuse or unauthorized disclosure.
15.7 The obligation to maintain the information as confidential in the sense of this Clause 15 hereof survives the expiration of the Contract and lasts for 3 years from its expiration.
15.8 Stratox shall be entitled to use the Customer’s brand and name and information on the scope of Services provided as a reference. Such limited use shall not be deemed a breach of confidentiality obligation.
16. PERSONAL DATA
16.1 The Contracting Parties hereby acknowledge that they will process personal data of natural persons acting on the side of the other Contracting Party (especially regarding identification and contact information) and possibly other persons involved in the performance of the Contract (as data subjects), for the following purposes:
16.1.1 performance of the Contract;
16.1.2 internal evidence of the controller and protection of its rights;
16.1.3 compliance with legal obligations to which the controller is subject.
16.2 Legal grounds for such personal data processing are:
16.2.1 legitimate interest of the controller in the proper performance of contracts concluded (purpose in 16.1.1);
16.2.2 legitimate interest of the controller in the evidence of contracts to which the controller is a party, and on the protection of its rights (purpose in 16.1.2);
16.2.3 necessity for compliance with a legal obligation to which the controller is subject, especially in the area of tax and accounting laws (purpose in 16.1.3).
16.3 Personal data are to be stored for the term of this Contract (regarding the purpose in 16.1.1), respectively for up to 16 years after the termination of this Contract (regarding the purpose in 16.1.2), respectively for the term necessary to perform respective legal obligations (regarding the purpose in 16.1.3).
16.4 Data subjects have the right:
16.4.1 to access their personal data;
16.4.2 to obtain from the controller rectification, addition, or erasure of the personal data;
16.4.3 to obtain from the controller restriction of processing of the personal data;
16.4.4 to obtain from the controller an explanation of the personal data processing;
16.4.5 to object to processing of personal data;
16.4.6 to receive the personal data from the controller within the right to portability;
16.4.7 to lodge a complaint with a supervisory authority.
16.5 Regarding the legal relationship between the Customer as controller and Stratox as processor, the Contracting Parties hereby enter into data processing agreement according to the Appendix No. 1 to these Terms and Condition.
17. TERM AND TERMINATION
17.1 The Contract is concluded for indefinite period of time, unless stipulated otherwise in the Contract.
17.2 The Customer and Stratox may terminate the Contract without any cause with a three-month notice period; the effectiveness of the Contract will be terminated from the first day of the calendar month following the expiry of the notice period.
17.3 Stratox may immediately withdraw from the Contract in the event of material breach of the Contract by the Customer, in particular:
17.3.1 in case the Customer uses the Service in a clearly abusive manner or in order to violate applicable legal regulations;
17.3.2 in case the Customer or data provided by the Customer violate the rights of third parties;
17.3.3 in case the Customer is in delay with payment of its outstanding payables for more than 30 days;
17.3.4 in case the Customer will not provide Stratox with the necessary cooperation, unless provision of this said cooperation by the Customer is due to insurmountable obstacles which exclude the duty of the Customer to pay damages (force-majeure) ;
17.3.5 in case of force-majeure, which mean any circumstances, extraordinary and unavoidable, which are beyond the reasonable control of Stratox including a declared or actual war, civil commotion, epidemics, blockades, embargo, fires, earthquakes, floods, and any other natural calamities as well as issuance of the state power acts ;or
17.3.6 In case of breach of the obligation to protect Confidential Information under this Agreement.
17.4 Stratox may immediately withdraw from the Contract in the following situations:
17.4.1 the Customer is declared bankrupt or that the Customer itself submits a debtor’s petition to initiate insolvency proceedings;
17.4.2 the Customer enters into liquidation; or
17.4.3 the Customer is prosecuted for a criminal offense under Act No. 418/2011 Coll., on Criminal Liability of Legal Entities, as amended.
17.5 Customer is entitled to terminate the Contract in case that it is repeatedly substantially breached by Stratox with regard to the agreed Service performance parameters and/or functionality described in the relevant Service Datasheet. Unless provided otherwise, the Contracting Parties shall deem as substantial breach:
17.5.1 if the actual performance of Service is below 80 % of the agreed threshold stipulated in Service Datasheet at least in 3 months from the last six consecutive calendar months even despite a written request for remedy was duly issued by the Customer at least 30 days before the third occurrence of such breach; or
17.5.2 if the Service lacks agreed functionality for a period longer than 30 days from delivery of a written notification issued by the Customer.
17.6 In the event that (i) all of the Services are terminated, (ii) the Customer terminates the Contract in the Trial Period in accordance with Clause 5.2 of these Terms and Conditions, the effectiveness of the Contract is automatically terminated.
18. EXIT PROCEDURES
18.1 Stratox will liquidate or delete all the data provided by the Customer, which is held by Stratox, or any third party providing the Services no later than 1 month from the termination of the Contract unless requested otherwise by the Customer.
18.2 Stratox is not obliged to liquidate or delete that data of the Customer which Stratox is obliged to retain in accordance with relevant legislation or which Stratox must retain in order to exercise any rights, or to enforce any rights of Stratox arising from the Contract.
19. GOVERNING LAW
19.1 This Contract and all the rights and obligations arising on the basis of the Contract and in connection with it are governed by the laws of the Czech Republic, in particular by the Civil Code with the exclusion of the rules on the conflict of laws.
20. DISPUTE RESOLUTION
20.1 The Contracting Parties undertake to make every effort to eliminate any disputes arising on the basis of the Contract or in connection with it and to resolve them, in the first instance, through negotiation.
20.2 All disputes arising from the Contract or in connection with it will be finally decided by the Arbitration Court, affiliated to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic, under its Rules by three arbitrators in accordance with the Rules of that said Arbitration Court.
21. FINAL PROVISIONS
21.1 In case the Contract or any other document, to which the Contract refers, are contradictory to a certain extent, then the priority of these documents is the following:
21.1.1 the Order Form;
21.1.2 these Terms and Conditions;
21.1.3 the Service Datasheet;
21.1.4 other documents.
21.2 The provision stipulated in Clause 21.1 does not apply, if it is obvious that a certain question is dealt with in more detail in another document, which would not have priority status according to Clause 21.1, or if the application of the stipulation in Clause 21.1 would be inconsistent with a later written agreement between the Contracting Parties.
21.3 The Contract is binding for both Contracting parties and their legal successors.
21.4 The Customer may not assign its receivables arising under the Contract to third parties without Stratox’ prior written consent.
21.5 If any provision of the Contract or any other document, to which the Contract refers, is void due to conflict with relevant legislation or becomes void during the effectiveness of the Contract, the validity of the other provisions remains unaffected.
APPENDIX 1 – Data Processing Agreement
1.1 All capitalized terms used in this Appendix 1 to the Terms and Conditions but not otherwise defined herein have the meanings given to them in the GDPR.
1.2 Each Contracting Party shall comply with the relevant obligations of the Applicable Data Protection Legislation that apply to the performance of the Contract in relation to their respective role as further described below.
1.3 The Customer, as the Controller, warrants, that as of the Effective Day its duties imposed by Applicable Data Protection Legislation have been duly met, in particular:
1.3.1 the Customer has been processing the Personal data for the purpose, in the scope, by means and methods specified herein, lawfully; in particular, the Customer has obtained and maintains a valid consent from all Data subjects with processing of their Personal data, if such condition applies to this processing;
1.3.2 the Customer informs the Data subjects on processing of their Personal data in a manner and extent prescribed by Applicable Data Protection Legislation;
1.3.3 the Customer enables the Data subjects to exercise their rights under Applicable Data Protection Legislation;
1.3.4 the Customer erases or destructs the Personal data at the moment the Personal data become unnecessary for the purpose for which the Personal Data are processed;
1.3.5 the Customer observes all of its remaining duties arising from the Applicable Data Protection Legislation; and undertakes to observe the abovementioned duties during the whole term of the Contract.
1.4 The Customer shall act as a Controller and Stratox shall process Personal data only on behalf of the Customer. Acting as a Processor, Stratox shall be processing Personal data according to the Customer strict and clear instructions in writing and for no other purposes than the ones approved by the Customer in writing; to exclude any doubts, the processing of the Personal data in accordance with performance of the Contract shall be deemed to be made in accordance with the Customer’s instructions. Stratox shall process Personal data to an extent necessary for due performance of Stratox’s obligations ensuing from the Contract.
1.5 Subject-matter of the processing, categories of the Data subjects and type of Personal data
Subject-matter of the processing are the Personal data of Data subjects specified in this article and/or the Contract and eventually other data made available by the Customer to Stratox concerning the Data subjects, namely personal data of Customer, Users or any other natural persons, which might be included in the data provided by the Customer or Users based on the Customer’s instructions in the course of use of the Services (the “Customer Personal data”).
1.6 Categories of Data subjects are Users, employees of Stratox and other natural persons whose data are included in the data provided by Users or the Customer.
1.7 Nature and purpose of the processing
The Customer, as data controller, entrusts Stratox as data processor with the processing of Personal Data to the extent necessary for the performance of the Contract and solely for the purpose arising from the purpose of the Contract e.g.: development of software, testing of the software, integration and hosting of data or provision of any other Services.
1.8 Duration of the processing
The Personal data processing shall take place during the term of the Contract. The Stratox’s obligations concerning the protection of the Personal data shall be observed during the whole term of the Contract unless, by the provisions of the Contract, these obligations shall persist beyond the end of its term.
1.9 Further obligations of the Stratox
The Stratox shall:
1.9.1 comply with the Customer’s instructions with regards to transfers of Personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the Stratox is a subject; in such case, the Stratox shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
1.9.2 ensure that persons authorised to process the Personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
1.9.3 taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer obligation to respond to requests for exercising the Data subject’s rights;
1.9.4 assist the Customer in ensuring compliance with the Customer’s obligations to (i) ensure a level of security of the processing, (ii) notify the Personal data breach to Office for Personal Data Protection and, eventually, the Data subjects, (iii) carry out an assessment of the impact on the protection of Personal data and (iv) consult the Office for Personal Data Protection prior to processing, all while taking into account the nature of processing and the information available to Stratox;
1.9.5 cooperate with the Customer to enable the Customer to assess and document the compliance of the processing of Personal data performed as a result of this Contract with Applicable Data Protection Legislation, taking into account the nature of processing and the information available.
1.10 Performance obligations under subsections 1.9 to 1.9.5 shall be remunerated with accordance with the Stratox’s Fees, or in case remuneration for respective activity is not specified in this pricelist, will be communicated by Stratox on request of the Customer.
1.11 Stratox has implemented and maintains technical and organisational measures to prevent unauthorized or accidental access to the Personal data, their change, destruction or loss, unauthorized transfers, or other unauthorized processing thereof, as well as any other abuse of the Personal data other unauthorized processing and other misuse of Personal data.
1.12 The Customer confirms that above measures are appropriate for the purposes of Personal Data Processing by Stratox under this Contract.
1.13 Stratox commits to inform the Customer about Data subjects’ requests and/or complaints it may receive in relation to the processing of the Customer Personal data.
1.14 Stratox shall allow for and contribute to audits of processing of the Personal data. The Contracting Parties stipulate that Stratox shall conduct such audits on its own initiative through the agency of an independent auditor not less than once every three calendar years. In case the Customer requires carrying out of an additional audit, it is entitled to ask Stratox to conduct the audit through the agency of the independent auditor under the foregoing sentence, however, not more often than once in a calendar year. Performance of this additional audit shall be remunerated with accordance with Stratox’s Fees, or in case remuneration for this additional audit is not specified in this pricelist, will be communicated by Stratox on request of the Customer.
1.15 Where Stratox intends to rely on sub-contractors for the performance of this Contract acting as Processors, Stratox shall not share the Customer Personal data with third parties and appoint Processors without the Customer’s prior specific or general approval. In any case, Stratox shall require its personnel and its sub-contractors to comply with Applicable Data Protection Legislation, with the same obligations as those defined hereunder and with reinforced confidentiality obligations.
1.16 The Customer hereby generally approves the Customer Personal data being shared with the third parties acting as a Processors.
1.17 In the event Stratox reasonably believes that there has been any potential or actual unauthorized or unlawful access to, or potential or actual use or disclosure of, the Customer Personal data, Stratox shall notify the Customer without undue delay after becoming aware of such Personal data breach.
1.18 Finally, upon termination or expiry of the Contract, Stratox shall cease any processing of the Customer Personal data and shall return and/or delete the Customer Personal data in accordance with the termination assistance services plan as defined in the Contract, unless applicable laws require storage of the Customer Personal data. If no termination assistance services plan is defined, Stratox shall delete or return all the Personal data to the Customer according to the choice of the Customer within 30 days from the Contract termination or expiry.
1.19 Where a change request regarding this Contract and/or business relationship based upon it is made by either contracting party in order to ensure that the Customer remains compliant with the Applicable Data Protection Legislation, the Contracting Parties agree that all reasonable costs of Stratox in complying with negotiated changes shall be borne by the Customer.
1.20 In case Stratox expends any costs in relation to providing the Customer, authorities or Data subject with assistance or cooperation in accordance with this article or the Applicable Data Protection Legislation or in relation to carrying out decisions of the Customer, Stratox is entitled to full compensation of such costs from the Customer. The Contracting Parties hereby provide that if there is a damage (including both harm to assets and liabilities and non-pecuniary harm) incurred by Stratox because of the Customer’s breach of its obligations under the Applicable Data Protection Legislation, the Customer shall provide Stratox with full compensation for such damage. The compensation for damage shall comprise, in particular, of (i) compensation for damage (including both harm to assets and liabilities and non-pecuniary harm) incurred by Data subjects as provided by the Applicable Data Protection Legislation and (ii) compensation for fines imposed upon Stratox by Office for Personal Data Protection or other authority.