1. Definition of terms

Smart Form Platform (hereinafter referred to as SmartFP) – software product, application platform of Gappex, s.r.o. called Smart Form Platform (hereinafter referred to as Work, Product or SmartFP). The software product is not sold, only the right to use it is granted – license.

Service – software maintenance and support of the Product hereinafter referred to as the Service.

The Provider – Gappex, s.r.o. is a company focused on the creation of customer software and is entitled under the provisions of Act No. 121/2000 Coll., Copyright Act to exercise on its behalf and on its own account the author’s property rights to the software Product, its individual variants, extensions and additional modules and has the right to grant the Purchaser the authorization to exercise the intellectual property right (license) in accordance with these GTC.

Licensee – The Licensee is a business entity (natural or legal person) that uses the Product to meet its operational needs in the course of its own business, a non-profit organization that uses the Product to meet its operational needs, or a natural person-consumer who is not acting in the course of a trade or other business. You may become a licensee by purchasing a license.

User – the end user of the product.

Database – data of the Purchaser stored in the structure of the Software Product.

SmartFP website – website at http://www.smartfp.cz operated by Gappex, s.r.o.

Remote assistance – service of remote connection of the Provider’s operator to the Provider’s server on which the Product is installed.

II. Introductory provisions

• In order to enable the Purchaser to use the Provider’s Work, the Provider concludes with the Purchaser (hereinafter referred to as the Participant) a contract for granting a license to exercise the right to use the Work, hereinafter referred to as the Contract or the License Agreement, under the terms and conditions specified in the Contract and these GTC.

• The terms and conditions agreed in the contract take precedence over the terms and conditions arising from the GTC.

• The acquirer is the exclusive owner of the data in the database, including the database itself.

• Participants are obliged to keep the contents of the database confidential.

III. Granting of a licence

• The Provider grants the Purchaser the right to use the Work for the specified uses within the scope defined in Article IV of these GTC (hereinafter referred to as the License), for a fee in accordance with Article VIII of these GTC, the Agreement or the order or invoice issued by the Provider.

• The Purchaser accepts the right to use the Work from the Provider and undertakes to pay the remuneration for granting this right to the Provider as set out in Article VIII of these GTC and the Contract, respectively in the Provider’s invoice.

1. Duration of the license, manner and scope of use of the Work

• The right to use the Work is granted for an indefinite period of time. If the conditions of Article IV, paragraph 4.5 of these GTC are fulfilled, the Purchaser is entitled to use the Work starting from the day following the crediting of the remuneration specified in Article VIII, paragraph 8.1 of these GTC, or in the invoice, to the Provider’s bank account.

• The Purchaser shall be entitled to use the Work only for the purpose of installation and operation in a manner standard for software, while maintaining the purpose of the Agreement, within the scope set forth in the Agreement and the applicable GTC.

• The Purchaser is entitled to use the Work simultaneously on the number of Users agreed in Article VIII, paragraph 8.1. of these GTC and the Agreement. Additional extension of the number of Users is possible on the basis of a mutually agreed contractual amendment and will be charged according to the currently valid price list. The payment of the tax document – invoice issued by the Provider by the User is also a manifestation of consent to the Licence Agreement and mutual agreement between the Provider and the User. The Licence Agreement does not require a written form. The Agreement shall only be signed if one of the Parties requires it to be in writing.

• The scope of use of the License is limited. The Purchaser is entitled to use the Work only on the defined number of the Purchaser’s servers and the number of users for which the License was issued. Any change in the manner of use of the Work may be made only with the Provider’s consent.

• The right to use the Work (Licence) shall arise for the Purchaser upon receipt of payment for the Licence for the number of Users agreed in Article VIII, Paragraph 8.1. and in the Contract to the Provider’s account with effect from the date set as the beginning of the right to use the Work in accordance with Article IV, Paragraph 4.1. of these GTC. In the case of negotiation of the Services, the provision of these services by the Provider shall commence as soon as the Provider receives from the User into its bank account the remuneration corresponding to the annual subscription fee for these services (according to the tax document – invoice sent by the Provider to the User in accordance with Article VIII. paragraph 8.3 and 8.4. of the GTC and the Contract).

• Rights and obligations of the participants

• The license is granted on an exclusive basis, meaning that the Provider has the right to license the Work to any third party at any time at its discretion.

• The Purchaser is not entitled to assign (sublicense) the right to use the Work to a third party without the Provider’s consent.

• The Purchaser shall be entitled to operate the Work only after fulfilling the payment condition set forth in Article IV, paragraph 4.5 and the Agreement. By the Provider’s installation of the Work to the Purchaser, the Purchaser agrees to the Provider’s GTC.

• The Provider shall have the right to make copies of the installation file in order to create a backup in case it is necessary to restore the Work to its original state.

• The Purchaser is not entitled to change, modify, decompile or create other products by modifying the original Work in any way. Therefore, it is the responsibility of the Purchaser to ascertain whether the Work conforms to the Purchaser’s technical and functional parameters and criteria.

• The Purchaser shall not rent, lease, lend or carry out other activities whereby the Work will be distributed to third parties, including its database structures and backups.

• The Purchaser declares that it has been informed that, in the current state of the art, incorrect operation or interruption of the software product due to a defect in the technical equipment cannot be ruled out. Provider shall not be liable for damages (including, without limitation, direct or indirect damages for personal injury, loss of business profits, business interruption, loss of business information or any other special loss) caused by interruption of function or inability to use the Work.

• The Acquirer is obliged to perform regular backups to a separate data repository and continuously verify the correct operation of the application and validate the results. In case of any doubts about the execution of backups, the operation of the Product or the results, the Purchaser is obliged to inform the Provider of such doubts without delay.

• The Provider has the right, in the event of the Purchaser’s failure to fulfil the obligations set out in Article VIII of these GTC, to restrict or completely prevent the commencement of use or prevent further use of the Work and not to continue to provide software support and maintenance services in the further (unpaid) period until the settlement of the agreed arrangements. The Provider does not have to notify the Purchaser in advance of the exercise of this right.

• The Provider is obliged, after receiving payment for the Licenses and the agreed Service without undue delay, to activate the Product or send the License File for activation of the Product to the Purchaser’s contact e-mail.

• If the Acquirer enters into the Agreement with the extension of program maintenance and support according to Article VII and decides to terminate this extension, it shall do so by written notice. The termination notice must be delivered to the Provider no later than 30 days before the expiration of the prepaid maintenance period. Upon receipt of the notice, Provider shall promptly.

• In the event of termination pursuant to clause 5.11, the Provider is not obliged to return the pro rata portion of the remuneration for the programme maintenance and support of the period.

• Warranty and Complaints Policy

• The license is granted for the current version of the Work and, in case of conclusion of the Agreement with the extension of software maintenance and support according to Article VIII, paragraph 8.1, also for all future versions that will be created during the term of the Agreement (ordered and paid software maintenance and support).

• The Purchaser declares that it has fully acquainted itself with the technical parameters and functionality of the Work. The Purchaser shall be fully responsible for the fact that the Work corresponds to the Purchaser’s criteria and technical capabilities and that the Work is a suitable solution for the Purchaser’s business and the way it conducts its business.

• The Provider guarantees the functionality of the Product in the sense of error-free implementation of the Product functions in the version according to Article VI, paragraph 6.1. The warranty provided by the Provider to the Purchaser pursuant to this provision applies only to material defects as defined in Article VI, paragraph 6.8 of these GTC. In the case of simultaneous purchase of software maintenance and support services pursuant to Article VII. of these GTC, the warranty shall apply to the current version of the product for the duration of the prepaid maintenance period. In the event of failure to purchase subsequent annual software maintenance and support for the next year of use of the Work, the warranty shall apply to the latest version of the Product as of the expiration date of the prepaid maintenance period.

• During the warranty period, the Provider is obliged to discuss with the Purchaser the procedure for eliminating the defect and to eliminate the defect in the most effective way and without undue delay.

• The Purchaser may report the defect in one of the following ways: by using the software function Reminders/Bug Report or by e-mail to info@gappex.cz.

• The Purchaser is obliged to report the occurrence of a defect in the Product by providing identification data; the version of the Product; a detailed specification of the defect and a detailed description of how the defect manifests itself; a description of the sequence of actions that can cause the defect.

• The Purchaser agrees, to the extent possible, to the Provider’s troubleshooting using the remote assistance software function.

• A material defect in the Product means a defect in the Product that completely prevents or significantly restricts the Purchaser’s activities so that the Purchaser cannot perform the normal functions purchased in the Product.

• A non-substantial Product defect is a Product defect that partially limits or hinders the Purchaser’s operation, but which is capable of performing the normal purchased functions.

• The absence of programming functions or the adaptation of the Work to the specific technical and working conditions and preferences of the Purchaser shall not be considered a defect.

• A situation where the software functions of the Work are limited by insufficient hardware/software capacity or a non-functioning IT infrastructure of the Purchaser shall not be considered a defect. Basic software means a legal and updated operating system (Windows Server 2008 and newer), installed antivirus protection, functional protection against attacks from the Internet (firewall) and a functional database server (MsSQL Server 2008R2/2012 and higher).

• Programme maintenance and support

• An optional part of the Work License is the Software Maintenance and Support Service (hereinafter referred to as the Service).

• The Purchaser has the right to order the Product Maintenance Program for the Product, always in annual cycles. In case the Purchaser is interested in the Maintenance Program, it shall inform the Provider, who shall issue an invoice/tax document based on this information, where the amount of the tax base shall be equal to a percentage of the total price of the Product license, excluding VAT, as specified in Article 8.2 of this Agreement.

• By not paying the invoice referred to in clause 7.2, the Purchaser waives the right to use the Work to the extent specified in clause 7.2 of these GTC and the Provider is entitled to restrict the use of the Work.

• In the case of ordering the Maintenance Program, the Product shall be updated to the Purchaser upon payment of the invoice referred to in clause 7.2 whenever a new version/update is available and immediately after the Provider issues such update. The Provider shall perform the update on the server side of the Purchaser within the framework of this program via the so-called remote access (remote desktop).

• The update is performed via a so-called remote connection (remote desktop) to the server of the Purchaser. The Purchaser must provide the Provider with sufficient technical conditions/instructions (e.g. access via VPN) to enable the Provider to perform this activity remotely.

• Additional assistance/assistance is available for program maintenance and support. However, the scope of such assistance and the remuneration for it are not part of these GTC and are always subject to a separate agreement between the Provider and the Purchaser.

• Irrespective of ordering or not ordering the Maintenance Program according to clause 8.1 of this article, the Purchaser shall be entitled to system updates, which, in case of not ordering the Maintenance Program, the Purchaser shall apply to its instance of the Product with its own resources. This entitlement shall be for the first two years following the purchase of the license. In the following years, the Purchaser shall receive updates only if the Maintenance Program is ordered. The Purchaser shall be informed by the Provider about the technical method of delivery of the update (e.g. on CD/DVD or by sending a link to download the update).

• Reward

• The contract between the Participants is concluded as a contract with or without software maintenance and support according to Article VII of these GTC. The Purchaser shall pay the Provider a fee for the provision of the Work License in accordance with the agreed Contract and these GTC.

• The value of the software maintenance and support fee for the first and each subsequent year of maintenance is calculated as 10% of the purchase price of the Product license.

• The remuneration for the Licenses, including the remuneration for software maintenance and support and, if applicable, other services related to the Work, shall be paid by the Purchaser on the basis of a payment and tax document (invoice) issued by the Provider to the Purchaser. The invoice shall have the requirements of a tax document pursuant to Section 28 of Act No. 235/2004 Coll. on VAT, as amended.

• The Provider’s remuneration for the provision of software maintenance and support is always invoiced for one year in advance.

• The due date of invoices issued by the Provider is usually 14 days from the date of their issue. The Purchaser undertakes to observe the due date of invoices. In the event of a breach of this obligation, a contractual penalty of 0.05% of the amount due for each day of delay shall be stipulated, without prejudice to the Provider’s right to compensation for damages.

1. Methods of termination of the contract

• The Contract may be terminated by written agreement of the Participants, which shall include the date of termination of the Contract and the agreement of the Participants on the mutual settlement of obligations.

• The Contract may also be terminated by withdrawal from the Contract by the Participant in the form of a notice of withdrawal, which must be in writing and delivered to the other party stating the reason for withdrawal. The legal effect of the withdrawal from the Contract shall take effect upon delivery, unless otherwise specified in the notice of withdrawal.

• The Provider shall be entitled to withdraw from the Contract in the event that the Purchaser is in default of payment of the fee for Licenses or the fee for program maintenance and support for the agreed number of users and other services related to the Work according to Article VIII. GTC and the Contract by more than 30 days from the due date of the invoice.

• The Purchaser shall be entitled to withdraw from the Contract if the Provider does not allow the Purchaser to use the Work under the terms of the Contract and these GTC, although the Purchaser has paid the due invoices to the Provider duly and on time, or if the Provider does not fulfil its obligation to remedy the defects referred to in Article 6.4 within 30 days of their proper notification in accordance with Article VI, paragraphs 6.5 and 6.6.

• Either Party may terminate the Contract by giving three months’ notice, commencing on the first day of the month following delivery of the notice to the other Party.

• Upon termination of the Contract by withdrawal, the Participants are obliged to return without delay everything they have received from the other party in connection with the performance under the Contract and these GTC.

• Delivery

1. Any letter, demand, notice or other document shall be deemed to have been delivered to the other Participant if delivered to the address specified by the Participant in the Agreement or to any other address notified in writing by the Participant to the other party for the purpose of delivering written notices. In case of doubt, a document sent by registered mail shall be deemed to have been delivered to the other Participant on the third day after the date of posting. The foregoing shall not apply to the procedure under clause 5.10 of these GTC.

• Binding declaration of confidentiality

1. The Parties consider the contents of the Agreement and these GTC, as well as all facts of their mutual relationship and cooperation, unless they are facts or information commonly available in public information sources (e.g. commercial register, land register, etc.), to be confidential information and undertake to keep them confidential and to do everything necessary to protect them and prevent their misuse.

1. The Participants agree that any confidential information may be disclosed or communicated by a Participant to a third party only with the prior written consent of the other Participant.

1. The Parties agree that this provision shall not apply if the obligation to disclose information arising from the Agreement and these GTC to a third party arises from law or from a final decision of a competent authority.

1. If any Participant provides any confidential information to a third party within the meaning of this Agreement, it shall inform the other Participant in writing without undue delay.

1. The provisions of this Declaration shall be binding on the successors in title of the Participants. Should it be necessary for any information to be disclosed to employees or legal representatives of the Participants, they shall be obliged to bind such entities to confidentiality to the extent of this Declaration.

• Final provisions

1. These GTC and the Agreement, as well as all resulting and related legal relations, are governed by the applicable law of the Czech Republic.

1. Changes to the GTC and amendments to the Contract require a written form with the signatures of the parties only if one or both parties require it or if it is stipulated in the GTC and the Contract.

1. The Acquirer automatically gives the right to include and publish the use of the SmartFP system among the Provider’s references, should the holder disagree with this, he must notify the Provider in writing. The Provider will not be entitled to list the Purchaser among the references.

1. The rights and obligations arising from the Contract and these GTC are legally binding for any successors in title of the Participants. The Agreement shall become valid and effective on the date of its signing by the Subscribers or on the date of payment of the agreed amount for the Licenses and the Service, whichever is earlier. If any provision of the Agreement or the GTC proves to be invalid, ineffective or unenforceable, the other provisions shall remain unaffected by that fact. The parties agree to replace such invalid, ineffective or unenforceable provision with another provision that best fulfills the same business purposes as the invalid, ineffective or unenforceable provision. The invalidity or ineffectiveness of any provision of these GTC shall not affect the invalidity or ineffectiveness of the GTC as a whole.

1. The Provider is entitled to collect, process and store the Purchaser’s personal data necessary for the performance of its business obligations or obligations under the Contract. The data thus collected shall be archived for the time necessary for the purpose of processing and shall not be disclosed to third parties. The Purchaser shall have the right to access his/her personal data and the right to have them deleted, rectified, including other legal rights to such data. By entering into the Agreement, the Purchaser consents to the sending of information regarding software products, services and goods, or related services and products, both in written and electronic form. Consent may be withdrawn at any time in writing to the address of the registered office of Gappex, s.r.o..

1. The relevant provisions of the Copyright Act and other legal regulations governing the use of computer programs and databases and penalties for their illegal use are not affected by these GTC.

1. The Provider is entitled to unilaterally change these GTC. The Provider is obliged to publish the new version of the GTC on its website without undue delay or send the new version or information about it to the Purchaser’s e-mail address. The Purchaser is obliged to familiarize himself with the amended GTC. For a Purchaser with a valid Contract, the amended GTC shall become binding at the moment and with effect from the date on which the Purchaser accepts the service or performance. The Purchaser shall have the option to reject this amendment to the GTC by way of termination in accordance with Article IX of these GTC. If the Purchaser does not give notice within 15 days from the date of notification of the change of these GTC, the Purchaser shall be deemed to have accepted the change of the GTC.

1. These GTC shall come into force on the date of publication on 1 March 2021. On that date, all previous versions of the GTC shall cease to be valid.