1. GENERAL TERMS AND CONDITIONS
By entering into the Agreement, the Customer agrees to the following General Terms and Conditions. The following General Terms and Conditions stipulate terms and conditions per which the Provider grants rights to use the Software and provides the Services. The General Terms and Conditions also serve to inform the Customer of what conditions or actions are required and what is (not) permitted in connection with the usage of the Software and/or the Services.
All of the terms used in these General Terms and Conditions and/or in the Agreement beginning with a capital letter shall be understood per the following:
2.1. Provider means the company AHEAD iTec, s.r.o., incorporated and organized under laws of the Czech Republic, ID number: 293 59 058, with its registered office at Za Dvorem 505, Štípa, 763 14 Zlín, Czech Republic.
2.2. Customer means a person licenced to engage in business activities entering into the Agreement with the Provider, particularly in relation to those business activities.
2.3. Agreement means a contract entered into by Provider and Customer for which these General Terms and Conditions are applicable. For the purpose of these General Terms and Conditions, the Agreement consists of the License Subscription Agreement and the Service Subscription Agreement.
2.4. License Subscription Agreement means an agreement on the Provider’s grant to the Customer of authorized use of the Software and Materials, the aspects of which are particularly governed by Part B of these General Terms and Conditions. For the authorized use of the Software and Materials by the Customer, Subscription is necessary, unless otherwise provided in the Agreement.
2.5. Service Subscription Agreement means an agreement on the provision of the Services concluded between the Provider and the Customer, the aspects of which are particularly governed by Part C of these General Terms and Conditions. For the provision of the Services by the Provider, Subscription is necessary, unless otherwise provided in the Agreement.
2.6. Application means the version of Customer’s application, as identified in the Agreement, that is to incorporate the Software in accordance with the terms of the Agreement.
2.7. Software means the “Talsec” software designed for integration into mobile applications in order to monitor and protect the applications from a third party induced security incidents and interferences (hacking attempts, reverse engineering attempts, etc.). For the purposes of these General Terms and Conditions and the Agreement, the Software also means all of its components, features and associated tools.
2.8. Material(s) means a documentation related to the Software needed for the implementation and integration of the Software into the Application.
2.9. Service(s) means the services of the Provider related to the functionality of the Software agreed upon in the Agreement, e.g. maintenance and upgrades of the Software and/or providing the Customer with operational data and information about the Software’s actions and performance.
2.10. End-User means any user of the Application with the integrated Software.
2.11. Subscription means an act of the Customer by which the Customer confirms in the manner provided for in the Agreement the authorized use of the Software and Materials and provision of the Services as specified in the Agreement. Subscription is a condition for the authorized use of the Software and Materials and provision of the Services as specified in the Agreement, unless otherwise provided in the Agreement.
2.12. Subscription Scope means the extent to which the Customer is entitled to authorized use of the Software and Materials and provision of the Services specified in the Agreement.
2.13. Subscription Fee means a monetary amount which, under the conditions and in the amount specified in the Agreement, the Customer is obliged to pay the Provider for the authorized use of the Software and Materials and provision of the Services.
2.14. Subscription Period means a period of time defined in the Agreement for which the Customer is granted a license to authorized use of the Software and Materials, entitled to provision of the Services and obliged to pay the corresponding Subscription Fee.
3. SOFTWARE CUSTOMIZATION
3.1. The Customer shall provide the Provider with all the necessary cooperation needed for the Provider to customize the Software for the Application. The Provider is authorized to request in particular:
3.1.1. a consultation regarding the Application, its structure, technical specifications, functionalities, etc.;
3.1.2. a test of compatibility and/or functionality of an intermediary version of the Software;
3.1.3. a necessary technical detail (e.g. Application package name) about the target application to customize the Software in order to effectively protect the Application
3.2. All communication and cooperation shall be provided by the Customer in an English language unless the Parties agree otherwise. Any materials provided to the Provider by the Customer as a part of their cooperation is to be comprehensible and in accordance with the standards universally applied and respected in the field of IT development.
3.3. If the Application, its part or any other intellectual property of the Customer is provided or disclosed to the Provider during the customization process, the Customer grants the Provider a free of charge, non-exclusive, non-transferable license to the extent the intellectual property is needed for the successful customization of the Software and consecutively for the provision of the Service(s).
3.4. If the Customer does not provide the Provider with the requested cooperation needed for the customization of the Software without undue delay, the time period set in the Agreement for the delivery of the customized Software is prolonged by the number of days for which the Customer is in a default with providing the requested cooperation.
3.5. If the Provider does not receive the requested cooperation from the Customer even within fifteen (15) days after the delivery of the Provider´s request or the Customer explicitly refuses to provide the cooperation, the Provider is entitled to terminate the Agreement immediately. In such a case the Customer shall compensate the Provider for the costs they incurred while customizing the Software for the Application up to that point.
3.6. Within the time period for the customization set by the Agreement, the Customer shall inform the Provider about any changes to the Application that might impact the customization process without undue delay. The Provider reserves the right to terminate the Agreement immediately if the changes to the Application during the customization process result in additional costs and the Customer refuses to compensate such costs.
4. SOFTWARE DELIVERY AND INTEGRATION
4.1. The Software shall be delivered by a method stipulated in the Agreement unless the Parties later agree otherwise.
4.2. The Material(s) shall be provided in a detail sufficient for the average specialist in the field to be able fully and properly integrate the Software into the Application.
4.3. The integration process in which the Software is integrated into the Application is fully under the control of the Customer. The Provider shall be obliged to provide any assistance with the integration only if the Software or the Material(s) were not duly delivered (e.g. the Software or Material(s) are faulty or unclear) or if the Parties have agreed otherwise (especially in the Agreement).
4.4. Any assistance with the integration of the Software provided by the Provider voluntarily shall not constitute an admission of any alleged faults of the Software or the Material(s) nor shall constitute any liability of the Provider for inappropriate integration of the Software.
4.5. The Customer shall accompany any reservations or declarations of faults regarding the delivered Software or Material(s) with an exact description of alleged faults together with description of the situation in which the alleged fault took effect. The Provider reserves the right to not asses and/or to not respond to any reservations or declarations of faults lacking the proper description.
5. LIMITATIONS OF USE
5.1. The Customer may not directly or indirectly copy, reproduce, modify, distribute, sell, lease sublicense, rent, share, disclose or transfer the Software or its part to any third party except as a part of the Application integrated pursuant to the Material(s).
5.2. The Customer may not disclose, sublicence or provide any other third party with the Software and/or Materials. The licence is limited for the personal use by the Customer without prejudice to the right to copy and distribute the Software as a part of the Application. This limitation applies also with regard to the Customer’s affiliates (especially parent companies or subsidiaries), unless stated otherwise by the Agreement.
5.3. The Customer may not reverse engineer or attempt to extract the source code of the Software. The Customer is allowed to decompile and to reproduce the Software solely to the extent provided by applicable law. This exemption provided by applicable law shall apply only on the condition that the information required to achieve the inter-operability of the Application cannot be obtained from the Provider within a reasonable period of time after the Customer’s previous express written request.
5.4. The Customer notes that the Software may include cryptographic technology, data or information that may be subjected to governmental regulations. The Customer shall not export, import, use, transfer, or re-export the Software except in compliance with the applicable laws and regulations of the relevant government authorities.
5.5. The Customer may not remove, circumvent, modify, alter or in any other manner manipulate any encryption, security, or other technology that is a part of the Software or the Services. They shall also not encourage, facilitate or cause any other party to do so.
6. PROPRIETARY RIGHTS
6.1. The Software and any and all its parts are protected by the appropriate copyright, patent and intellectual property laws of the country of its origin and country in which it is being used. All rights, title and interest not expressly granted herein are reserved by the Provider.
6.2. Customer acknowledges and agrees that they do not acquire any intellectual property or other proprietary rights, including patents, copyrights, trademarks, industrial, designs, moral, trade secret or confidential information relating to the Software. Customer agrees that they shall not refute or otherwise challenge Provider’s ownership of any such intellectual property rights.
6.3. All comments, ideas, changes or other feedback provided by Customer (or any End-User) regarding the Software shall be owned solely by the Provider. The Provider shall be the sole and exclusive owner of any and all authorized or unauthorized modifications, derivative works and improvements of the Software. The Customer hereby assigns any rights, titles and interest to such modifications, improvements or derivatives to the Provider.
7. MAINTENANCE AND UPGRADE OF SOFTWARE
7.1. This clause 7 of the General Terms and Conditions shall apply only if the Customer subscribed to receive maintenance and/or upgrades of the Software under the Agreement. It shall be also used accordingly if the Provider provides the Customer with the newer version of the Software voluntarily.
7.2. The maintained or upgraded version of the Software shall be delivered to the Customer in the same form as the originally customized Software. The delivery and integration of the upgraded version of the Software shall be governed appropriately (when possible) by the rules for the delivery and integration of the originally customized Software as stipulated by the Agreement and the General Terms and Conditions.
7.3. The Provider does not make any warranties and/or assurances as for the frequency and scope of the maintenance or upgrades. The Customer notes that the Software is to be continuedly developed to the best of the Provider’s capabilities and knowledge which, however, may not necessarily cover or reflect all the technological advances in the field.
7.4. The Provider hereby reserves the right to discontinue the further development of the Software at any moment. Such decision shall be duly announced to the Customer and means the immediate termination of the Service Subscription Agreement in the part of providing the maintenance or upgrade Service. Any other part of the Service Subscription Agreement shall prevail. In such a case, the Customer is not entitled to any refunds and/or discounts from the agreed fee. Any discount to the monthly fee is subject to the Provider’s discretion.
8. PRICE AND PAYMENT CONDITIONS
8.1. The amount and payment conditions of the Subscription Fee shall be specified in the Agreement.
8.2. The agreed Subscription Fee and any other payments under the Agreement do not include VAT, other taxes or tariffs. The Provider is entitled to a Subscription Fee or any other payment under the Agreement with an addition of any applicable VAT, other taxes or tariffs.
8.3. The Customer is entitled to make an objection to the invoiced amount and/or the information in the report within five (5) days after the invoice and/or report is delivered. Any objection shall be accompanied by the exact description of an alleged error or inaccuracy. Any objection to the invoice or the report does not affect the date of maturity of the payment, unless the Provider expressly states otherwise.
9. TERMINATION OF THE AGREEMENT AND SUSPENSION OF PERFORMANCE
9.1. The Agreement may be terminated by either Party with a three (3) months’ notice period which begins to run by the first day of the month following the month in which the written notice of one of the Parties was duly delivered to the other Party.
9.2. The Agreement may be withdrawn from by either Party with immediate effect:
9.2.1. if the other Party materially breaches the Agreement or these General Terms and Conditions and fails to the remedy the breach within thirty (30) days after receiving written notice of the breach;
9.2.2. if the other Party ceases to carry a business in the ordinary course, becomes insolvent or is the subject of voluntary or involuntary bankruptcy or liquidation proceedings;
9.2.3. if the other Party has receiver, trustee or similar officer appointed with respect to the whole substantial part of its assets, or is the subject of any creditor protection or proposal or similar arrangement under applicable law.
9.3. Without prejudice to any other provisions of the Agreement and the General Terms and Conditions, the Provider is also entitled to withdraw from the Agreement with immediate effect if the Customer breaches the terms and conditions of the granted licence(s) or in any way causes or enables the breach of the Provider’s proprietary rights to the Software or any other intellectual property.
9.4. Upon expiry or termination of the Agreement, for any reason:
9.4.1. All licences and rights provided to the Customer under the Agreement and Part B of these General Terms and Conditions are immediately terminated and the Customer shall not be entitled to any refund;
9.4.2. The Customer shall immediately cease all use of and/or access to the Software and delete and/or destroy all copies of the Software that are in their possession or control;
9.4.3. The Customer shall make any and all steps to remove the Software immediately, and no later than 7 days after the termination, from the use as part of the Application, in particularly release a Software-free version of the Application (or an appropriate update/downgrade to the Application); this Art. 9.4.3 will also apply for the end of the Subscription Period similarly (for any reason whatsoever);
9.4.4. The Provider shall have the right to block any use of and/or access to the Service(s), and/or delete any data associated with the Service(s), without a prior notice to the Customer;2.4.5. The Customer shall remain liable for all amounts due and shall pay all such fees immediately upon expiration or termination of the Agreement.
9.5. The Provider reserves the right to suspend any and all its performance without a prior notice to the Customer if the Customer is in a default with fulfilment of any of their obligations under the Agreement. The Provider may, in particularly, make the Service(s) unavailable until the Customer’s obligations are duly fulfilled.
9.6. If the Software provides independent (offline) functionalities and the Customer fails to fulfil its obligation under Art. 9.4.3 above (e.g. by releasing Software-free version of the Application), the Customer is further obliged to pay the Provider the Subscription Fee as agreed in the Agreement as if the Agreement continued, until it demonstrably prevents any further use of the Software by End-Users or any third party.
10.1. The Software is provided on an “as is” and “as available” basis. The Provider makes no representations or warranties of any kind, express, implied, statutory or otherwise, regarding the Software, Materials and/or Service(s). The Provider specifically disclaims any implied warranties of satisfactory quality, merchantability, fitness for a particular purpose or non-infringement. The entire risk as to the results and performance of the Software and Material is assumed by Customer. The Provider does not warrant that the Software, Material and/or Service(s) will operate uninterrupted or error-free. The Provider does not represent or warrant that the operation of the Software will not interfere with the Application or otherwise impact the performance or battery life of any other software, applications, or devices used therewith, and the Provider will not be responsible for any of the foregoing or for any loss of data.
10.2. The Software and Materials are not designed or intended for use in or in connection with applications requiring failure-free operation in which the failure of the product or software could create a situation in which personal injury or death may occur (such as health-monitoring or life-support applications etc.). The Customer is not granted any rights under the Agreement with respect to any such applications and the Provider will not be liable for any use in connection with such applications.
10.3. The Provider does not and shall not warrant that the Software will be resistant to all possible attacks and shall not incur, and disclaims, any liability in this respect. Even if the Software, with its updates and upgrades, is compliant with current security standards in force on the date of their design, the Customer hereby expressly acknowledges that the resistance of the security mechanisms necessarily evolves according to the state of the art in security and notably under the emergence of new attacks. Under no circumstances, the Provider shall be held liable for any third-party actions or claims and/or damage, in particular in case of any successful attack against Application incorporating the Software.
11. LIMITATION OF LIABILITY AND INDEMNIFICATION
11.1. Except for the Customer’s obligations to pay all applicable fees, neither Party shall be liable for its failure to perform or the delayed performance of its obligations if such failure results from circumstances beyond the affected Party’s reasonable control, including third party acts or disablements and any law or governmental order, rule, regulation or direction.
11.2. In no event the Provider or its third party licensors will be liable arising out of or in connection with the Agreement for any direct, special, consequential, incidental or indirect damages (including, without limitation, damages for loss of business profits, business interruption, loss of data or business information), however caused, on any theory of liability (including negligence), and notwithstanding any failure of essential purpose of any limited remedy, except to the extent that such liability may not be excluded under applicable law. In such a case the abovementioned liability of the Provider is limited for the whole duration of the Agreement by the aggregate amount that equals the sum of all the fees that were already paid by Customer to the Provider under the Agreement.
11.3. To the maximum extent permitted by the applicable law, the Customer agrees to defend, indemnify and hold harmless the Provider, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) the Customer’s use of the Software, (b) any application or other product or service the Customer develops using the Software that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by the Customer with the Agreement and/or their statutory duties.
12.1. Each Party shall consider the commercial and technical documents and any and all information, such as (but not limited to) data and facts made available by the other Party as the exclusive property of the disclosing Party. The receiving Party undertakes (i) to use the confidential information only for the purpose of performing the Agreement and in compliance with its terms, and (ii) not to disclose nor allow or facilitate said confidential information to be disclosed to any third party without the prior written consent of the disclosing Party; (iii) to disclose the confidential information exclusively to its own employees who have a need to know the confidential information solely for the purpose of the Agreement.
12.2. Confidential information does not include any information that the receiving Party can demonstrate by written records: (i) was known to the receiving Party prior to its disclosure hereunder; (ii) is independently developed by the receiving Party; (iii) is or becomes publicly known through no wrongful act of the receiving Party; or (iv) has been approved for public release by the other Party’s prior written authorization.
12.3. The receiving Party will take every reasonable precaution to protect the confidentiality of the disclosing Party. Upon request by the receiving Party, the disclosing Party will advise whether or not it considers any particular information to be confidential.
12.4. The provisions of this clause 12 shall survive and remain valid for a period of five (5) years following expiration or termination of the Agreement.
13. GOVERNING LAW AND JURISDICTION
13.1. The Agreement shall be governed and is entered into under the law of England. Any dispute arising out of or in connection with the Agreement, including disputes regarding its existence, validity, termination and subsequent agreements of the supply and services relation to the Agreement shall be settled in accordance with the laws of England.
13.2. The Parties shall make every effort to settle and resolve any dispute arising under or in connection with the Agreement, in particular by negotiations of the Parties’ authorized representatives. However, in case of failure to solve any disputes amicably, any and all disputes arising under or in connection with the present Agreement shall be finally resolved by Arbitration.
13.3. Any disputes arising out of or in connection with the Agreement, including disputes relating to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber by one or three arbitrators appointed in accordance with the said Rules. Vienna International Arbitral Centre shall decide ex aequo et bono or as amiable compositeur. The language to be used in the arbitral proceedings is English.
14. CHANGES TO TERMS AND CONDITIONS
14.1. The Provider reserves the right to unilaterally change these General Terms and Conditions and/or any of their part at its sole discretion.
14.2. If the Provider change the General Terms and Conditions in any way that materially modifies the Customer’s rights and obligations, the Provider will provide the Customer with at least a thirty (30) days’ notice before the changes take effect. During this period, the Customer is entitled to withdraw from the Agreement with the cancellation term ending on the day the new General Terms and Conditions take effect.
15.1. The Provider reserves the right to assign the Agreement and rights and obligations associated with it (Agreement as a whole) without prior special consent of the Customer to any company belonging to the same company group as the Provider in connection with the transfer of all (or substantially all of) the assets or business of the Provider relating to the product(s) to which the Agreement relates.
15.2. The Provider and the target company shall be considered as a member of the same company group in the context of Art. 15.1. if at the time of the assignment:
15.2.1. the target company controls the Provider;
15.2.2. the Provider controls the target company; or
15.2.3. the target company is being controlled by another company that, at the same time, controls the Provider.
15.3. The control means in the context of Art. 15.2.: (i) beneficial ownership of more than 50 % of the issued share capital of the company, or (ii) legal power to direct or cause the direction of the general management of the company; in both cases both directly or indirectly (through another entity).
15.4. The Provider will notify the Customer about any assignment under this Article. The assignment of the Agreement shall take effect at the moment of notification.
16. FINAL PROVISIONS
16.1. Notwithstanding anything to the contrary, the Parties agree that Customer’s or any of its End-Users’ breach of certain terms of the Agreement or these General Term and Conditions may cause irreparable harm to the Provider for which damages shall be an inadequate remedy and the Provider may therefore seek injunctive or equitable relief in any court of competent jurisdiction without the requirement of posting a bond, in addition to all other remedies available to it.
16.2. The provisions of the Agreement and these General Terms and Conditions are for the benefit of the Customer and the Provider and not for any other person or entity, whether under statute or otherwise, except for the Provider’s affiliates and suppliers of the Software.
16.3. The waiver by either Party of any right provided under the Agreement and these General Terms and Conditions must be in writing signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under the Agreement and these General Terms and Conditions.
16.4. If any section, provision or part of these General Terms and Conditions is held to be illegal, invalid or unenforceable by a court of competent authority in any jurisdiction, that section, provision or part shall be limited of possible and only thereafter severed to the extent necessary to render these General Terms and Conditions valid and enforceable under such jurisdiction.
16.5. Failure by either Party to exercise or enforce any rights under this Agreement or at law shall not be deemed to be a waiver of any such right.
Talsec GT&C – version 1.1 | effective from 16.09.2023 to 21.09.2023
Previous version v.1 effective before 16.09.2023 is available here.