General Business Terms and Conditions
I. Definitions of Used Terms
1.1 “Acceptance Period”:
The period during which the Client (see section 1.15 GTC) is required to commence the Acceptance Test (see section 1.3 GTC) of the Work (see section 1.9 GTC) and complete it.
1.2 “Acceptance Process”:
The process of acceptance, handover, and receipt of the Work (see section 1.9 GTC), leading to the conclusion or fulfillment of the Contract subject (see section 1.22 GTC).
1.3 “Acceptance Test”:
The final stage of testing the Work (see section 1.9 GTC), conducted to verify its functionality before the actual handover of the Work to the Client (see section 1.15 GTC) and the commencement of live and/or trial operation.
1.4 “Author’s Work”:
Author’s work within the meaning of § 2 of the Copyright Act (see section 1.6 GTC), which is created in the fulfillment according to the Contract (see section 1.22 GTC) and/or in connection with the Contract. For the purposes of these GTC (see section 1.26 GTC), the Author’s Work also means its individual partial fulfillments.
Intellectual property rights, especially various author’s works within the meaning of § 2 of the Copyright Act (see section 1.6 GTC), created and/or supplied in connection with the fulfillment according to the Contract (see section 1.22 GTC) by a third party – a subcontractor of the Producer (see section 1.29 GTC). For the purposes of these GTC (see section 1.26 GTC), the Author’s Work of a Third Party also means its individual partial fulfillments.
Act No. 121/2000 Coll., on copyright, on rights related to copyright, and on amendments to certain laws, as amended.
The offer of the Producer (see section 1.29 GTC) containing mainly the specification of the Work (see section 1.9 GTC) and the amount of the Remuneration (see section 1.17 GTC) for the execution of the Work and for the provision of the License (see section 1.12 GTC) and/or Sub-license (see section 1.24 GTC) by the Producer in favor of the Client (see section 1.15 GTC). All prices stated in the Price Offer are contractual and are stated without VAT.
A joint statement of the Producer (see section 1.29 GTC) and the Client (see section 1.15 GTC) on the fact of the handover of the respective partial fulfillment of the Work (see section 1.9 GTC) by the Producer and its acceptance by the Client.
Various virtual tours or other 3D visualizations or presentations, in which individual panoramic shots are dynamically interconnected using interactive elements (e.g., various buttons, maps, plans, multimedia elements, such as audio tracks or videos). For the purposes of these GTC (see section 1.26 GTC), the Work also means its individual partial fulfillments.
All information exchanged between the Producer (see section 1.29 GTC) and the Client (see section 1.15 GTC) in connection with the fulfillment according to the Contract (see section 1.22 GTC), including the text of the Contract. For the purposes of these GTC (see section 1.26 GTC), Confidential Information also means its individual parts.
A joint statement of the Producer (see section 1.29 GTC) and the Client (see section 1.15 GTC) on the fact of the handover of the Work
by the Producer and its acceptance by the Client.
The non-exclusive right to use the Author’s Work under the conditions set out in these GTC (see section 1.26 GTC).
Reasonably incurred costs that the Producer (see section 1.29 GTC) incurs in the performance and/or in connection with the fulfillment according to the Contract (see section 1.22 GTC), e.g., costs for transport or accommodation, fees associated with permission for aerial work, etc.
Act No. 89/2012 Coll., the Civil Code, as amended.
A natural or legal person who independently performs profitable activities in a trade or similar manner on their own account and responsibility with the intention of doing so systematically for the purpose of achieving profit. The Client is in particular:
· a person registered in a public register;
· a person who conducts business based on a trade license (person registered in the trade register);
· a person who conducts business based on a non-trade license according to another law.
A specific location and/or space that is the subject of the Work, or which will be captured as part of the virtual interactive presentation of the Work. For the purposes of these GTC (see section 1.26 GTC), the Object also means its individual parts.
The remuneration for which the Producer (see section 1.29 GTC) will perform the Work in favor of the Client and provide him with the License and/or Sub-license (see section 1.24 GTC). For the purposes of these GTC (see section 1.26 GTC), the Remuneration also means its individual parts.
The method of payment of the Remuneration for the execution of the Work and for the provision of the License and/or Sub-license (see section 1.24 GTC) by the Producer (see section 1.29 GTC) in favor of the Client.
1.19 “Materials”:
Any input source materials and/or information provided by the Client to the Producer (see section 1.29 GTC), for the purpose of fulfillment according to the Contract (see section 1.22 GTC).
1.20 “Inquiry”:
An expression of the Client’s will, by which the Client expresses their interest in the execution of the Work by the Producer (see section 1.29 GTC) and in the provision of the License and/or Sub-license (see section 1.24 GTC), under the conditions set out in these GTC (see section 1.26 GTC).
1.21 “Subject Matter”:
Any object (including any parts and/or accessories), device, and/or equipment located in the Object and captured as part of the Work.
1.22 “Contract”:
A separate contract concluded between the Producer (see section 1.29 GTC) and the Client, the subject of which is the commitment of the Producer to perform the Work at its own expense and risk for the Client and the commitment of the Client to accept the Work and pay the Producer the Remuneration. These GTC (see section 1.26 GTC) form an integral part of the Contract.
1.23 “Countries”:
The territory of countries where it is not possible to apply Czech law to the determination of the rights holder to the Author’s Work and the handling of the Author’s Work, as stated in these GTC (see section 1.26 GTC).
1.24 “Sub-license”:
The non-exclusive right to use the Author’s Work of a third party under the conditions set out in these GTC (see section 1.26 GTC).
1.25 “Performer”:
A natural person whose likeness and
/or artistic performance is captured as part of the fulfillment of the Work according to the Contract.
1.26 “GTC”:
These General Terms and Conditions (in their valid wording).
1.27 “Force Majeure”:
An extraordinary, unforeseeable, and insurmountable obstacle that arose independently of the will of the Producer (see section 1.29 GTC) and/or the Client within the meaning of § 2913 of the Civil Code.
1.28 “Website”:
The Producer’s website (see section 1.29 GTC) available at www.virtusfera.cz.
1.29 “Producer”:
The company idealvision s.r.o., ID No.: 038 20 891, VAT ID: CZ03820891, with its registered office at Hvězdářská 512/4, Velká Chuchle, 15900 Prague 5, registered in the Commercial Register kept at the Municipal Court in Prague, file no. C 238302.
II. Basic Provisions
2.1 These GTC regulate the legal relations between the Producer and the Client in the area of execution of the Work and the provision of the License and/or Sub-license by the Producer in favor of the Client.
2.2 By accepting the Producer’s Price Offer, as stated in section 3.3 of the GTC, the Client confirms that they have become acquainted with these GTC and that they fully agree with them.
2.3 Provisions deviating from the GTC may be agreed upon in the Contract. Deviating agreements in the Contract take precedence over the provisions of the GTC.
2.4 The Contract and the GTC are drawn up in the Czech language. If the Contract and GTC are drawn up in a language other than Czech, as agreed by the Producer and the Client, the Czech language version always takes precedence in case of any discrepancies between the Czech and other language versions.
2.5 The wording of the GTC may be changed by the Producer. The Producer will inform the Client of the planned change of the GTC through the Website, at least 30 days before the effectiveness of the new wording.
2.6 Legal relations between the Producer and the Client not explicitly regulated by these GTC or by the Contract concluded between the Producer and the Client are governed by the relevant provisions of the Civil Code and the Copyright Act, as well as related regulations.
III. Contract
3.1 If the Client is interested in the execution of the Work by the Producer, they will send the Producer an Inquiry, in which they will specify, in particular, the Object that is to be the subject of the Contract, and the expected scope and term of fulfillment. The Client declares and undertakes that they will not make an Inquiry towards the Producer that they are unable to fulfill (for example, with regard to the financial or organizational possibilities of the Client).
3.2 In response to the Producer’s Inquiry according to section 3.1 GTC, if the Producer is interested in executing the Work for the benefit of the Client, they will prepare a Price Offer for the Client. All Price Offers of the Producer are time-limited and non-binding for the Producer; thus, the Price Offer does not represent a proposal to conclude a contract (offer) in the sense of § 1731 and following of the Civil Code. The Producer is entitled to modify or cancel the Price Offer at any time; a Price Offer with a later issue date fully cancels and replaces a Price Offer with an earlier date. After the expiration of the validity period, the Price Offer ceases to be valid without further ado.
3.3 If the Client agrees with the Price Offer according to section 3.2 GTC, they will send their binding consent to the Producer; thus, the contractual parties consider the Client’s consent to the Price Offer according to this section 3.3 GTC as a proposal to conclude a Contract (offer) in the sense of § 1731 and following of the Civil Code.
3.4 If the Contract is not signed in writing between the Producer
and the Client, it is concluded at the moment of delivery of the acceptance (acceptance) of the Client’s proposal according to section 3.3 GTC by the Producer, which is sent by the Producer to the Client electronically, to the Client’s email address. The Client acknowledges and agrees that from the moment the Contract is concluded according to this section 3.4 GTC, they are bound by this Contract and are obliged to fulfill it under the conditions stated in the GTC and the Price Offer, which form an integral part of the Contract. The Client further acknowledges that without the conclusion of the Contract, the Producer is not obliged to fulfill in favor of the Client, in any scope.
3.5 If the Client does not agree with the Producer’s Price Offer and/or sends the Producer any deviation from the Price Offer (concerning, for example, qualitative conditions, scope, amount of Remuneration, or term of fulfillment), the contractual parties consider this as the Client’s disagreement with the Price Offer; in such a case, the contractual parties will again initiate the process of negotiating the Contract terms as stated in this Article III GTC.
3.6 The Client acknowledges that the Producer is not obliged to conclude the Contract, especially with persons who have previously substantially breached their obligations towards the Producer. In particular, the Producer is not obliged to conclude the Contract with the Client if:
a) the Client was repeatedly in arrears with the payment of the Remuneration or any other due performance;
b) the Client entered liquidation;
c) insolvency proceedings were initiated against the Client.
For the purposes of these GTC, repeated breach of obligations from the Contract according to this section 3.6 GTC is understood as twice or more (regardless of whether this happened immediately one after the other or not). The Client expressly agrees with the procedure according to this section 3.6 GTC; the Client acknowledges and agrees that they are not entitled to any compensation for any damage possibly caused thereby.
3.7 If the Contract is concluded electronically (see section 3.4 GTC), the Client agrees to the use of remote communication means when concluding the Contract with the Producer. The costs incurred by the Client in using remote communication means in connection with the conclusion of the Contract according to the GTC (e.g., costs for internet connection or telephone calls) are borne by the Client themselves.
IV. Rights and Obligations of the Contractual Parties
4.1 From the moment of concluding the Contract, the Producer undertakes, under the conditions stated in the Contract, to execute the Work for the benefit of the Client at their own expense and risk as specified in the Contract, and the Client undertakes to accept the Work as specified in the Contract and pay the agreed Remuneration to the Producer.
4.2 The Contract can be changed only based on the mutual agreement of the Producer and the Client. The Contract is binding for the legal successors of the contractual parties.
4.3 The Client is obliged to provide the Producer with all the Materials necessary for the fulfillment according to the Contract. Unless otherwise agreed by the contractual parties, the Producer is entitled to use the Materials only in the form in which they receive them from the Client, and only in connection with the fulfillment according to the Contract. For this purpose, the Client grants the Producer consent to use the said Materials.
4.4 By signing the Contract, the Client declares that the Materials provided to the Producer according to section 4.3 GTC will not be encumbered with the rights of third parties, especially those arising from intellectual property rights, to which the Client will not be entitled to use. If any damage is caused to the Producer as a result of a breach of obligations according to this section 4.4 GTC, the Client is obliged to compensate the Producer for this damage and is themselves responsible for obtaining adequate authorization (license) for both contractual parties, under the conditions and to the extent arising from the Contract.
4.5 In addition to the Materials according to section 4.3 GTC, the Client is further obliged to provide the Producer with other documents, materials, and/or information necessary for the fulfillment of the Producer according to the Contract and/or that may affect the fulfillment of the Producer according to the Contract. The Client is also obliged to inform the Producer without delay about any changes and other circumstances that concern the fulfillment of obligations arising from the Contract. The Client is responsible to the
Producer for the completeness, correctness, or up-to-dateness of the documents, materials, and/or information (including Materials) provided by the Client according to these GTC. If any damage is caused to the Producer as a result of a breach of obligations according to this section 4.5 GTC, the Client is obliged to fully compensate the Producer for this damage.
4.6 The Client is obliged to provide cooperation to the Producer throughout the entire fulfillment according to the Contract. The Client is obliged to submit to the Producer documents, materials, and/or information (including Materials) crucial for the fulfillment of the Contract, after agreement with the Producer and with sufficient lead time. The Client undertakes to cooperate with the Producer so that they will express a binding opinion without unnecessary delay on the facts that are necessary for the proper and timely fulfillment according to the Contract (in particular, regarding conceptual, qualitative, pricing, and/or timing issues). If the Client does not submit documents, materials, and/or information (including Materials) to the Producer in the required scope, including for reasons that they do not have them, are unknown to them and/or do not submit them unintentionally, they are not entitled to claim rights from the defective performance of the Work or the right to compensation for damage resulting from the fact that the Producer could not take into account documents, materials, and/or information (including Materials) that the Client did not submit.
4.7 In connection with section 4.6 GTC, if the Client is in delay in providing cooperation to the Producer in the fulfillment according to the Contract, for the duration of the Client’s delay, the Producer is not in delay with the fulfillment according to the Contract; the fulfillment deadlines according to section 5.1 GTC are appropriately extended in such a case. If the Client is in delay with providing cooperation exceeding 14 days, the Producer is entitled on the 15th day of the Client’s delay to charge the Client an amount of up to 30% of the Remuneration (excluding VAT) and invoice the remaining Remuneration according to the conditions agreed in the Contract.
4.8 The Client will participate in the consultation of the work in progress of the Work at the Producer’s request. The Producer undertakes to incorporate and respect technically feasible comments of the Client, which the Client is obliged to submit to the Producer no later than 7 days before the planned start of the respective fulfillment by the Producer. However, if such comments of the Client would represent an increase in budgetary costs against the Remuneration by more than 20% of the Remuneration (excluding VAT), the Producer is obliged to inform the Client of this fact, and in case the parties do not agree, especially on the (new) amount of the Remuneration and the term of fulfillment, the Producer is not obliged to incorporate such comments of the Client.
4.9 The Client acknowledges and agrees that the Producer will execute the Work according to the Contract also through third parties (subcontractors of the Producer).
4.10 If the Work involves a Performer whose participation is ensured by the Client at their own expense and responsibility, the Client is obliged to ensure that the Performer arrives on time at the agreed place, follows the instructions of the Producer, and is available to the Producer until the end of their participation, with the physical condition of the Performer allowing work at an appropriate level, according to the purpose and character of the Work. At the same time, the Client is obliged to obtain adequate authorization (license) to exercise the right to use the artistic performance of the Performer (if recorded as part of the Work) and/or the consent of the Performer for the recording, collection, reproduction, dissemination, and/or use of the Work, on which the likeness of the Performer will be captured, including their personal and/or sensitive data (if recorded as part of the Work), under the conditions and to the extent arising from the Contract. If the Client breaches the obligations according to this section 4.10 GTC, they are responsible to the Producer for the damage caused thereby in full and are not entitled to claim rights from the defective performance of the Work or the right to compensation for damage caused in this regard. If an object owned, created, and/or generally associated with the Performer is to be captured as part of the Work, the provisions of this section 4.10 GTC shall apply accordingly.
4.11 In connection with section 4.6 GTC, the Client is obliged to enable the Producer, for the purpose of fulfilling the Contract, to enter the Object, or other related places and/or spaces according to the Producer’s instructions. The Client acknowledges and agrees that if they do not ensure
the Producer’s entry into the Object, or other related places and/or spaces according to the Producer’s instructions, according to this section 4.11 GTC, the Producer is entitled not to start and/or interrupt the fulfillment according to the Contract, until the moment the Client rectifies the situation; the fulfillment deadlines according to section 5.1 GTC are appropriately extended in such a case.
4.12 In connection with section 4.6 GTC, the Client is obliged to ensure that the Object, or other related places and/or spaces according to the Producer’s instructions, into which the Producer is allowed to enter for the purpose of fulfilling the Contract, comply with all legal requirements in terms of occupational safety and health and fire protection. At the same time, the Client is obliged to ensure the Object, or other related places and/or spaces according to the Producer’s instructions, so that there are no unreasonable damages to the freedom, life, health, and/or property of other persons (especially the Producer). In case any damage is caused to the Producer as a result of a breach of obligations according to this section 4.12 GTC, the Client is obliged to compensate the Producer for this damage.
4.13 In connection with section 4.6 GTC, the Client is obliged to ensure that the condition of the Object allows work at an appropriate level, according to the purpose and character of the Work, in accordance with the Producer’s instructions. The Client is especially obliged to ensure that the Object is equipped and/or furnished only with such Items that are to be captured as part of the Work and, conversely, to remove from the Object such Items that should not be part of the Work. All Items that will thus be captured as part of the Work will then not be encumbered with the rights of third parties, especially those arising from intellectual property rights, to which the Client will not be entitled to use. If the Item to be captured as part of the Work represents a carrier of any advertising or other commercial communication, the inclusion of the said Item as part of the Work is entirely at the expense of the Client. In case any damage is caused to the Producer as a result of a breach of obligations according to this section 4.13 GTC, the Client is obliged to compensate the Producer for this damage and is themselves responsible for obtaining adequate authorization (license) for both contractual parties, under the conditions and to the extent arising from the Contract.
4.14 The Producer will follow reasonable and technically feasible instructions of the Client in the fulfillment of the Contract and proceed in close cooperation with the Client.
4.15 The Client is entitled at any time during the fulfillment according to the Contract to check the method of fulfillment and compliance of the fulfillment with the conditions agreed in the Contract, and the Producer is obliged to provide the Client with work in progress for inspection upon request.
4.16 The Producer is obliged to inform the Client about facts during the fulfillment according to the Contract that may affect the fulfillment according to the Contract. The Producer is obliged to proceed with due professional care in the fulfillment according to the Contract, to ensure fulfillment in accordance with the interests of the Client, which they demonstrably know, to notify the Client of all circumstances discovered during the performance of their activity and that may affect the change of the Client’s instructions.
4.17 The Client acknowledges and agrees that the subject of the Producer’s fulfillment is only the execution of the Work as specified in the Contract, and therefore the integration of the Work on the Client’s websites or the connection of the Client’s online store with the Work is not part of the Producer’s fulfillment; the Client thus acknowledges and agrees that all these activities are entirely at the expense of the Client.
4.18 If the subject of the Work, or if the virtual interactive presentation of the Work is to capture an outdoor environment, and at the same time the Producer believes that the current climatic conditions and/or weather are not suitable or optimal for capturing the given outdoor environment, the Producer is obliged to inform the Client of this fact and propose an alternative fulfillment date. If the Client agrees with the alternative date according to the previous sentence, the contractual parties will agree on an appropriate extension of the fulfillment deadlines according to section 5.1 GTC. If the Client does not agree with the alternative date, the Client acknowledges and agrees that the Producer will fulfill under the original agreed conditions; however, in such a case, the Client is not entitled to claim rights from the defective performance of the Work or the right to compensation for damage caused in this regard.
4.19 According to § 1765 of the Civil Code, the contractual parties
have taken upon themselves the risk of a change of circumstances. Before concluding the Contract, the parties considered the economic, economic, and factual situation in full and are fully aware of the circumstances of the Contract. Therefore, the Contract cannot be changed by a court decision.
4.20 The Client is not entitled, without the Producer’s consent, to assign their rights and obligations arising from the Contract to a third party.
4.21 For the purposes of the Contract, the contractual parties exclude the application of § 1740 para. 3, §§ 1793 to 1796, §§ 1798 to 1801 of the Civil Code.
V. Fulfillment Deadline
5.1 Unless otherwise agreed in the Contract, the Work will be executed by the Producer for the Client in the following phases:
a) the first, so-called conceptual phase, which will consist mainly of:
· rough analysis and familiarization with the topic;
· analysis of the Client’s needs;
· elaboration of the proposal for the conceptual solution of the Work;
and within the term agreed in the Contract;
b) the second, so-called realization phase, which will consist mainly of:
· preparatory work and consultations with experts;
· taking and/or recording raw material;
and within the term agreed in the Contract;
c) the third, so-called finalization phase, which will consist mainly of:
· editing and finalization work on the Work;
· consultations with experts and incorporating changes;
· cooperation with marketing and/or assistance with the most effective integration;
and within the term agreed in the Contract.
To exclude any doubts, the contractual parties unanimously declare and make undisputed that the individual phases as stated in this section 5.1 GTC are partial fulfillments of the Work.
5.2 The Producer is entitled to fulfill even in earlier terms than those stated in section 5.1 GTC.
5.3 In connection with section 5.1 letter a) and b) GTC, the Producer is obliged, within the terms specified in this Article V. GTC, to hand over to the Client the partial fulfillment of the Work corresponding to the respective phase, for its approval by the Client and/or further processing by the Producer. The Producer is obliged to incorporate into the respective partial fulfillment of the Work technically feasible comments of the Client. If the Client approves the partial fulfillment of the Work thus presented, the Producer is obliged to continue fulfilling according to the Contract in accordance with the fulfillment approved by the Client; for this purpose, the contractual parties will draw up a Partial Handover Protocol, which they will sign electronically via the email addresses of the contractual parties. Otherwise, the Producer is obliged to modify the partial fulfillment of the Work in accordance with the technically feasible comments of the Client and present it again to the Client for approval. If the Client does not express an opinion on the partial fulfillment of the Work sent by the Producer to the Client, even upon the Producer’s request within a reasonable granted period, it is considered that the Client agrees with the sent partial fulfillment of the Work. In such a case, the fulfillment deadlines according to section 5.1 GTC are also appropriately extended.
VI. Place of Fulfillment
6.1 The place of fulfillment is agreed in the Contract.
VII. Remuneration and Payment Conditions
7.1 The amount of Remuneration is agreed in the Contract.
7.2 The contractual parties may agree within the Contract that the Client will pay, in addition to the Remuneration according to section 7.1 GTC, also the Costs; for the purposes of these GTC, the Remuneration also includes the Costs according to this section 7.2 GTC.
7.3 The Client pays the Remuneration to the Producer according to the Payment Conditions agreed in the Contract. The due date of invoices (tax documents) is 14 days from their issue.
7.4 If the contractual parties agree on the payment of the Remuneration through advances on the Remuneration,
the Client is obliged to pay the Producer the respective advances based on advance invoices issued by the Producer with a due date of 7 days. According to the explicit agreement of the contractual parties, the Producer is obliged to account for all advances paid by the Client towards the Remuneration agreed between the parties.
7.5 Any discounts and/or bonuses provided by the Producer to the Client cannot be combined with each other, unless otherwise agreed in the Contract.
7.6 The Client acknowledges that if they are in delay with the payment of any due amount according to the Contract, the Producer is entitled not to start and/or interrupt the fulfillment according to the Contract until the moment of full payment of the respective amount; in such a case, the fulfillment deadlines according to section 5.1 GTC are appropriately extended.
7.7 The Producer and the Client agree on the method of payment of the Remuneration as agreed in the Contract.
7.8 The Producer is obliged to indicate in the tax document a bank account that is published by the respective tax administrator in a manner allowing remote access. The Client agrees to the issuance and sending of electronic invoices.
7.9 The Producer is a VAT payer; thus, the current amount of VAT according to the legal regulations effective at the time of the taxable supply is also added to the amount of the Remuneration. The accounting document must have all the attributes of tax documents according to § 11 of Act No. 563/1991 Coll., on Accounting, as amended, a tax document for the purposes of value added tax then the attributes according to § 28 et seq. of Act No. 235/2004 Coll., on Value Added Tax, as amended; all documents then also the attributes according to § 435 of the Civil Code.
7.10 The Client is entitled, before the expiration of the due date, to return the invoice to the Producer without payment, if it does not contain some of the attributes stated in the Contract, and/or if it has other defects in content or indicates the banking connection and account number of the Producer in contradiction with the Contract or in contradiction with the written notification of its change, and/or if these attributes are stated otherwise incorrectly. The Client must indicate the reason for the return on the returned invoice. The Producer is obliged to correct the invoice according to the nature of the incorrectness (reason for return) or to issue it anew. By returning the invoice rightfully, the original due date ceases to run. The entire due date runs again from the day the corrected or newly issued invoice is delivered to the Client.
7.11 Any claims arising from the Contract can be assigned exclusively with the prior written consent of the other contractual party. The consent to the assignment of the claim must include an agreement of the contractual parties on the method of payment of VAT from the performance to which the assigned claim relates, so that the tax is properly paid and no liability of the recipient of the taxable supply arises under § 109 of Act No. 235/2004 Coll., on VAT, as amended. If no such agreement is reached, consent to the assignment of the claim may be denied.
7.12 The day of crediting the respective amount to the Producer’s account stated in the invoice is considered the day of payment of the respective amount according to the Contract.
7.13 All fulfillments that are not agreed in the Contract are considered by the contractual parties as extra work. The Producer is obliged to notify the Client before the start of extra work that it is extra work that is not part of the Remuneration according to the Contract. The Client acknowledges that the Producer is not obliged to perform extra work without the prior written agreement of the contractual parties, in particular the agreement on the scope and term of fulfillment. Unless otherwise agreed by the contractual parties, the price of extra work according to this section 7.13 GTC is the amount of CZK 1,500 excluding VAT per hour.
7.14 If the Remuneration related to the fulfillment of the Contract increases significantly after the conclusion of the Contract, by more than 25% of the Remuneration (excluding VAT), the Producer is entitled to invite the Client to start negotiations on the (new) amount of the Remuneration. If the contractual parties do not agree within 14 days from the day of sending the Producer’s invitation according to this section 7.14 GTC, the Producer is entitled to withdraw from the Contract.
VIII. Acceptance Process
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8.1 The Work according to the Contract is considered completed on the day of its completion by the Producer and its handover to the Client as part of the Acceptance Process. The Producer is obliged to hand over the Work according to the Contract to the Client in the manner, form, and/or format specified in the Contract.
8.2 The Producer initiates the Acceptance Process by notifying the Client that the Work is ready for acceptance. The Client is obliged to start and complete the Acceptance Test within the Acceptance Period, which is specified in the Contract.
8.3 During the Acceptance Process, the Client is obliged to report all detected defects and/or shortcomings of the Work to the Producer without delay. If all detected defects and/or shortcomings of the Work are removed by the end of the Acceptance Period, the Client is obliged to accept the Work. If the Client rightfully refuses the Work, the contractual parties will agree on a replacement period in which the Producer will remove the detected defects and/or shortcomings of the Work. After the removal of defects and/or shortcomings of the Work, the Acceptance Process according to this Article VIII. GTC will be repeated.
8.4 The Work is defective if its execution does not correspond to the specification stated in the Contract. A defect is especially understood as a deviation from the qualitative conditions, scope, properties, or parameters of performance, established in the Contract and/or technical standards or other legal regulations.
8.5 A defect and/or shortcoming of the Work is removed if the Producer has informed the Client that the defect and/or shortcoming has been removed and has shown the Client that the Work is no longer suffering from this defect and/or shortcoming. A defect and/or shortcoming is also removed by delivering an alternative method to the Client for using the Work, in which the defect and/or shortcoming does not manifest itself, and in which it fulfills its basic functions without significantly affecting the Client’s experience of using the Work (so-called workaround).
8.6 A written Final Handover Protocol will be drawn up by the contractual parties about the conclusion of the Acceptance Process; the following, in particular, are part of this Final Handover Protocol:
a) specification of the Work (including specification of the data and/or source format and parameters);
a) list of any defects and/or shortcomings of the Work;
b) list of annexes, including the relevant documentation related to the Work;
c) possibly other facts that the parties agree on at the act of handover.
By signing the Final Handover Protocol by both contractual parties or by the fiction of protocol handover according to section 8.9 and/or 8.10 GTC, the Work is considered duly handed over.
8.7 The Client is obliged to take over the Work without defects or with defects and/or shortcomings that do not individually and/or in connection with others prevent proper use of the Work. As part of the handover of the Work with defects and/or shortcomings that do not individually and/or in connection with others prevent proper use of the Work, the Client is obliged to list in the Final Handover Protocol, in addition to the list of defects and/or shortcomings, after agreement with the Producer, also the date and/or method of their removal. Unless otherwise agreed by the contractual parties, the Producer will remove the defects and/or shortcomings of the Work listed in the Final Handover Protocol within 60 days of the protocol handover of the Work.
8.8 The Producer is not responsible for defects and/or shortcomings of the Work caused for reasons on the part of the Client.
8.9 The Client is not entitled to refuse to sign the Final Handover Protocol without reason, without a reasonable reason, and/or contrary to the Contract. Therefore, for the purposes of the Contract, the case is also considered as protocol handover and acceptance of the Work if the Client refuses to sign the Final Handover Protocol according to this section 8.9 GTC (for any reason); in such a case, the Work is considered protocolly handed over and accepted on the day the Client refused to sign the Final Handover Protocol.
8.10 If the Client is in delay with starting and completing the Acceptance Test in the Acceptance Period, as stated in section 8.2 GTC, longer than 7 days, and at the same time the Work is otherwise ready for acceptance to the
maximum possible extent, where the Work cannot be executed only due to the Client’s delay, the Work is considered completed on the 8th day of the Client’s delay.
8.11 Unless otherwise agreed by the contractual parties, the Producer will hand over the Work to the Client in electronic form, captured on a data carrier upon signing the Final Handover Protocol. By taking over the data carrier containing the Work, the Client becomes the owner of the carrier.
IX. License
9.1 The contractual parties acknowledge that during the fulfillment according to the Contract and/or in connection with the Contract, a Work of Authorship will be created; with regard to the above, all rights and obligations of the contractual parties arising from copyright laws related to the Work of Authorship, in particular the scope of the Client’s rights to exercise the right to use the Work of Authorship, will be governed by this Article IX. GTC, unless otherwise agreed by the contractual parties.
9.2 The Producer declares that the Work of Authorship created according to the Contract and/or in connection with the Contract will be independent of other works of authorship, except for the Work of Authorship of a third party, that the Producer will be entitled to dispose of the Work of Authorship and that it will not be legally or factually restricted in disposing of the Work of Authorship. The Producer further declares that the Work of Authorship will be free of defects and that its use will not violate any rights of a third party or legal regulations, in particular personality and/or copyright rights.
9.3 In connection with section 9.1 GTC, the Producer grants the Client a non-exclusive right to exercise the right to use the Work of Authorship (License), exclusively for the purpose arising from the Contract, with the suspensive condition of the effectiveness of this section 9.3 GTC until the day of full payment of the Remuneration to the Producer or protocol handover and acceptance of the Work (see Article VIII. GTC) (whichever occurs later).
9.4 The License is granted without territorial and quantitative restrictions and for an indefinite period. The Client is obliged to use the License according to the Contract.
9.5 The Client is not entitled to grant the rights acquired under the Contract (to grant sublicenses) in whole or in part to third parties, in any scope. The Client is also not entitled to rent, provide leasing, lend and/or otherwise allow a third party to use the Work of Authorship.
9.6 The Client is also not entitled to assign the License in whole or in part to any third party in the sense of § 2364 of the Civil Code.
9.7 The Client is not entitled to modify the Work of Authorship in any way, change it and/or combine the Work of Authorship with another work, or include it in a collective work, even for the purpose of removing any possible defects of the Work. The Client is also not entitled to translate the Work of Authorship into a language other than its original language.
9.8 The Client is not entitled to decompile the Work and/or perform its reverse analysis, nor to take similar or other steps to obtain the source code of the Work, except for and to the extent of activities cogently expressly permitted by the relevant legal regulations. The Client is not entitled to copy the Work, unless otherwise stated in the Contract, the relevant legal regulations, and/or international agreements.
9.9 The contractual parties are obliged to mutually notify each other of facts justifying a possible unauthorized interference and/or endangerment of rights from the Work of Authorship without undue delay after learning of these facts. The contractual party is obliged to provide the necessary cooperation to the other contractual party in such a case.
9.10 The Client is not entitled to register the Work of Authorship in the form of industrial property rights at the national, European, and/or international level.
9.11 The License is granted as a paid license, where the fee for the License is, according to the explicit agreement of the contractual parties, already included in the agreed Remuneration, and its payment by the Client to the Producer will be fully settled between the contractual parties.
9.12 In connection with section 4.9 GTC, if Work of Authorship of a third party is created during the
fulfillment according to the Contract and/or in connection with the Contract, and/or if Work of Authorship of a third party is used during the fulfillment according to the Contract and/or in connection with the Contract, the Producer grants the Client a non-exclusive right to exercise the right to use the Work of Authorship of a third party (Sublicense), to the same quantitative, territorial, and temporal extent as the Producer grants the License to the Client according to this Article IX. GTC, with the suspensive condition of the effectiveness of this section 9.12 GTC until the day of full payment of the Remuneration to the Producer or protocol handover and acceptance of the Work (see Article VIII. GTC) (whichever occurs later). The provisions of this Article IX. GTC shall apply mutatis mutandis to the Sublicense according to this section 9.12 GTC.
9.13 If it is not possible to apply Czech law to determine the holder of rights to the Work of Authorship and to dispose of the Work of Authorship with regard to the territory of the States, as stated in section 16.2 GTC, the following rules apply to these cases, in this order:
a) in all States where it is possible, the Producer is considered the author of the Work of Authorship from the beginning;
b) in all States where it is not possible to apply the statement according to letter a) of section 9.13 GTC and where it is possible, the Producer is the owner of copyright and other intellectual property rights to the Work of Authorship;
c) in all States where it is not possible to apply the statement according to letters a) and/or b) of section 9.13 GTC and where it is possible, the Producer has the right to exercise all (in particular property) rights to the Work of Authorship arising from the relevant regulations for the protection of intellectual property rights;
d) in all States where it is not possible to apply the statement according to letters a), b), and/or c) of section 9.13 GTC and where it is possible, the Producer is the holder of the exclusive license for all ways of using the Work of Authorship (including ways of use that are not yet known, if the respective legal order allows it), in its original and any modified or processed form, for the entire period of protection of the Work of Authorship according to the relevant legal regulations, without quantitative limitation and for the entire territory of these States, with the right to grant sublicenses (in full or partial extent) to third parties and with the right to assign licenses (in whole or in part) to third parties;
e) in all States where it is not possible to apply the statement according to letters a), b), c), and/or d) of section 9.13 GTC, the Producer is the holder of a non-exclusive license to use the Work of Authorship in the scope described in letter d) of section 9.13 GTC. The Producer especially has the right to publish the Work of Authorship, complete the unfinished Work of Authorship, modify and/or process the Work of Authorship in any way, including translation, combine it with another work, include the Work of Authorship in a collective work.
9.14 The following rules apply to cases described in section 9.13 GTC, in this order:
a) in those States where the Producer is considered the author of the Work of Authorship (see letter a) of section 9.13 GTC) and/or where it is the owner of copyright and other intellectual property rights to the Work of Authorship (see letter b) of section 9.13 GTC), the rights granted by the Producer to the Client under the Contract are non-exclusive, under the conditions and to the extent stated in this Article IX. GTC, if the legal order of the respective States allows it;
b) in those States where the Producer has the right to exercise copyright and other intellectual property rights to the Work of Authorship (see letter c) of section 9.13 GTC), the rights granted by the Producer to the Client under the Contract are non-exclusive, under the conditions and to the extent stated in this Article IX. GTC, if the legal order of the respective States allows it;
c) in those States where the Producer is the holder of an exclusive license to use the Work of Authorship (see letter d) of section 9.13 GTC), the rights granted by the Producer to the Client under the Contract are non-exclusive, under the conditions and to the extent stated in this Article IX. GTC, if the legal order of the respective
States allows it;
d) in those States where the Producer is the holder of a non-exclusive license (see letter e) of section 9.13 GTC), the rights granted by the Producer to the Client under the Contract are also non-exclusive, under the conditions and to the extent stated in this Article IX. GTC, if the legal order of the respective States allows it.
X. Protection of Information
10.1 The Producer and the Client are obliged to maintain confidentiality about Confidential Information and otherwise ensure their secrecy.
10.2 The Producer and the Client, in particular, undertake to ensure the secrecy of Confidential Information and, in particular, not to provide a third party with Confidential Information without the written consent of the other contractual party. Even if Confidential Information is provided with such consent, the contractual party is obliged to obligate such a third party in writing to maintain confidentiality about all communicated facts to the extent similar to this Article X. GTC.
10.3 The obligation to ensure the secrecy of Confidential Information lasts for the entire duration of the Contract and 10 years after the end of the duration of the Contract.
10.4 The Producer and the Client agreed that information is not considered Confidential and persons to whom it will be disclosed have no obligation regarding their secrecy if they meet one of the following conditions:
a) were provably known to the persons to whom they will be provided before the conclusion of the Contract and these persons were not obliged to protect them from disclosure to a third party;
b) persons to whom they will be provided have provably legally received them from a third party without restriction and breach of the Contract;
c) persons to whom they will be provided have created them independently under the condition that the person or persons who created them do not have access to Confidential or secret information of the parties;
d) it is about disclosure to state authorities based on the request of a state authority and persons to whom they will be provided ensure that such information is treated as a trade secret;
e) the obligation to disclose arises from the relevant legal regulations.
10.5 The Producer and the Client agree with each other that if any party is ordered by a court or administrative authority to disclose Confidential Information, this party is obliged to inform the other party in writing about such a request or summons without undue delay, and this party is entitled to disclose Confidential Information only after taking the necessary measures to prevent misuse or other disclosure of Confidential Information to third parties.
10.6 A party that breaches the obligation to protect Confidential Information agreed in the Contract is liable to the other party for damages in full, regardless of fault.
10.7 No public statement regarding the Contract may be made without the prior written consent of the other party to the text of such a statement.
XI. Liability for Damage
11.1 Each of the contractual parties is liable for damage caused to the other contractual party by breaching its obligations established by the Contract and/or generally binding legal regulations.
11.2 The contractual parties expressly agree with each other to compensate for any possible non-pecuniary damage by its compensation in money, especially for damage caused by breach of the Contract and/or legal regulation, which would result in endangerment and/or damage to the good name of the other contractual party.
11.3 Both contractual parties undertake to take all available measures to prevent the occurrence of damage and to make any possible damage as small as possible.
11.4 No contractual party will be considered responsible for non-fulfillment of any provision of the Contract if it was temporarily or permanently prevented from fulfilling the contractual obligation by Force Majeure.
11.5 The contractual party that breaches its obligation, or that should know in view of all circumstances that it will breach its obligation established by the Contract, or that learns about the circumstance of Force Majeure preventing the fulfillment of the obligation according to the Contract, is obliged to inform in writing the other contractual party about the nature of the obstacle preventing or going to prevent the fulfillment of the obligation and about its consequences. The message must be submitted without undue delay, but no later than within 3 days after the obligated contractual party learned or could have learned about the obstacle with due care. The other contractual party is obliged to confirm the receipt of
such a message in writing without undue delay. The other contractual party must be informed in the same way about the end of the circumstances of Force Majeure preventing the fulfillment of the obligations arising from the Contract.
11.6 The total foreseeable compensation for damage according to § 2952 of the Civil Code, for which the Producer is liable to the Client in connection with the Contract, is limited to direct damages (i.e., damages arising as an immediate and normally expected consequence of the damaging event), but no more than 50% of the Remuneration (excluding VAT). This limitation does not apply to health damage according to § 2898 of the Civil Code.
XII. Contact Persons
12.1 The Producer and the Client will designate their contact persons for the purposes of fulfilling the Contract.
12.2 All fulfillments of the Contract, consultations, inquiries, requests, handover or approval of instructions and/or any other notifications related to the Contract, the contractual parties are obliged to direct exclusively through the contact persons according to section 12.1 GTC.
12.3 A change in contact persons, addresses of the contractual parties, as well as other contact details is not considered a change to the Contract; however, the contractual party is obliged to notify in writing the other contractual party of the change of the contact person, address or other contact details without undue delay.
XIII. Sanctions
13.1 If the Producer is in default with the execution of the Work according to the Contract, it is obliged to pay the Client a contractual penalty in the amount of 0.05% of the Remuneration (excluding VAT), for each, even just started day of delay, but no more than 25% of the Remuneration (excluding VAT).
13.2 If the Client is in default with the payment of any due performance according to the Contract, it is obliged to pay the Producer a contractual interest on arrears in the amount of 0.05% of the due amount (including VAT), for each, even just started day of delay.
13.3 If the Client uses the Work in violation of the License and/or Sublicense agreed in Article IX. GTC, it is obliged to pay the Producer a contractual penalty in the amount of CZK 20,000 (in words: twenty thousand Czech crowns), for each individual breach of the contractual conditions. Payment of the contractual penalty according to this section 13.3 GTC does not affect the claim for compensation for the damage caused.
13.4 If the Client is in default with the provision of cooperation in the fulfillment according to the Contract, it is obliged to pay the Producer a contractual penalty in the amount of CZK 2,000 (in words: two thousand Czech crowns), for each, even just started day of delay. Payment of the contractual penalty according to this section 13.4 GTC does not affect the claim for compensation for the damage caused.
13.5 The contractual penalty and/or contractual interest on arrears according to this Article XIII. GTC are due within 10 days from the delivery of the written summons for payment to the other contractual party.
13.6 The Client is not entitled to the payment of the contractual penalty according to section 13.1 GTC if the Producer proves that the delay in the execution of the Work was caused by reasons on the part of the Client.
XIV. Duration of the Contract
14.1 The Contract becomes valid and effective on the day it is signed by both contractual parties; this provision does not affect section 9.3 and/or 9.12 GTC.
14.2 The effectiveness of the Contract can be terminated prematurely:
a) by a written agreement of the contractual parties;
b) by termination with immediate effect delivered to the other contractual party in the case of the issuance of a decision by the insolvency court on the method of solving the bankruptcy according to the law no. 182/2006 Coll., insolvency law, as amended, to the other contractual party;
c) by written withdrawal from the Contract in the case of a substantial breach of contractual obligations by a contractual party for statutory reasons and/or for reasons agreed in
the Contract (including GTC). The withdrawal from the Contract is effective at the moment of its delivery to the other contractual party.
14.3 In addition to the cases mentioned in these GTC, a substantial breach of the Contract is considered:
a) delay of the Producer in the execution of the Work according to the Contract longer than 30 days;
b) delay of the Producer in the removal of defects and/or shortcomings of the Work according to the Contract longer than 30 days.
14.4 Furthermore, a substantial breach of the Contract is considered:
a) delay of the Client in the payment of any due performance according to the Contract longer than 30 days;
b) delay of the Client in providing cooperation in the fulfillment according to the Contract longer than 30 days.
14.5 In addition to the cases mentioned in these GTC, the Producer is further entitled to withdraw from the Contract:
a) if the Client has entered liquidation; and/or
b) if, in view of the circumstances, it appears that the Client will not fulfill its obligations arising from the Contract (e.g., in the case of the Client’s delay in paying other obligations).
14.6 The contractual parties further agreed that the Producer is entitled to withdraw from the License and/or Sublicense agreed in Article IX. GTC (with ex nunc effects), if the Client uses the Work of Authorship and/or the Work of Authorship of a third party in violation of the License and/or Sublicense agreed in Article IX. GTC. The withdrawal from the License and/or Sublicense must be made in writing and delivered to the Client. By withdrawing according to this section 14.6 GTC, the License and/or Sublicense granted by the Producer to the Client is terminated in full.
14.7 In the event of termination of the Contract before the execution of the Work according to the Contract, the contractual parties will settle mutual claims and obligations that will exist between them, no later than within 30 days from the termination of the Contract, whereby
a) the Producer primarily hands over to the Client all fulfillments agreed according to the Contract, which it completed until the termination of the Contract if the Client provided (or will provide) payment for these fulfillments arising from the Contract, or they are to be provided to the Client free of charge;
b) the Client pays the Producer all outstanding amounts for the proper performance of the Producer, to which the Producer is entitled at the termination of the Contract according to the Contract, including Costs;
in principle, it applies that partial fulfillments of the Work properly provided by the Producer until the termination of the Contract will be provided by the Client to the extent of the proportional part of the agreed Remuneration according to Article VII. GTC.
14.8 On the day of termination of the Contract, the contractual parties are obliged to return and no longer use in any way all documents, materials and/or information, including Confidential Information and/or Materials, whether in paper form or captured on other media, which were provided to it by the other contractual party in connection with the Contract and/or belong or have some relation to the activity of the other contractual party.
XV. Delivery
15.1 All notifications arising from the Contract will be in writing and will be handed over to the other contractual party in person, sent by electronic mail (e-mail) with a receipt (request for confirmation of reading), sent by regular mail by registered mail with a receipt to the addresses listed in the relevant public register (unless the contractual party communicates in writing to the other contractual party another delivery address), or through a data box.
15.2 Sending any message by electronic mail (e-mail) is considered a full-fledged sending and suffices as a way of sending a written document according to these GTC, all this only with the exception of notifications about the termination of the Contract and/or License and/or Sublicense, and/or the application of sanctions according to these GTC, which must be handed over to the other contractual party in person, sent by regular mail, or through a data box. An e-mail is considered delivered by displaying a message about reading by the recipient or on the 3rd day after sending, if the message about reading is not delivered to the sender of the e-mail within 2 weeks from the day of sending. A
written document is considered delivered at the moment of receipt by the addressee or if it is not accepted (the shipment is returned as unwanted, the addressee will be unknown at the specified address or will be moved without specifying a new address, etc.) regardless of the reason for non-acceptance, on the 3rd working day after its sending. A written document is also considered delivered if the contractual party refuses to accept the document, on the day of refusal to accept the document. If the notification is delivered in several ways of delivery, the notification is considered delivered on the day that occurred first.
XVI. Final Provisions
16.1 These GTC are valid from 1.1.2024 and replace the previous wording of the GTC.
16.2 If the legal relationship established by the Contract contains an international (foreign) element, then the parties agree that the relationship is governed by Czech law. In case of disputes arising from the Contract, the contractual parties agree on the jurisdiction of Czech courts, with a prorogation clause for the courts according to the domicile of the Producer.
16.3 The Producer is entitled to perform the Work based on a trade license and the activity of the Producer is not subject to another approval. Trade control is carried out by the relevant trade office within its competence.
16.4 If any provision of the Contract is invalid or ineffective, or becomes such, instead of the invalid provision, a provision will take place, the meaning of which is as close as possible to the invalid provision. The invalidity or ineffectiveness of one provision does not affect the validity of other provisions.
16.5 If a written Contract is not concluded, the Contract is archived by the Producer in electronic form and is not accessible. The Producer will issue one copy of the Contract to the Client in the form of acceptance of the Client’s proposal according to section 3.4 GTC electronically, to the e-mail address of the Client.
Approved for the company idealvision s.r.o. by Radek Forman, DiS., the company’s executive
