Terms & Conditions for the POS terminal provision contract
1. CONTRACTING PARTIES
1.1. This Agreement is concluded between the company Besteron, a.s., IČO: 47 866 233, with registered office at Teslová 20 /A, 821 02 Bratislava, a company registered in the Commercial Register of the District Court Bratislava I, section Sa, insert number 6004/B, ("B" ) and Merchants.
(B and Merchant each as a "Party" and collectively as the "Parties")
2. EFFECTIVITY AND TERMINATION
2.1. The Agreement is concluded and becomes effective between the Parties upon written confirmation of receipt of the POS Request submitted by the Merchant from Party B or delivery of the Equipment in accordance with the POS Request, whichever occurs first ("Effective Date").
3.1. Capitalized terms in this Agreement have the meaning set forth below or as expressly provided in another part of these GTC:
a) Accessories means hardware or other accessories listed in the POS Application and/or in the Price List;
b) Payment Service Provider is a payment service provider with which the Merchant has a contract on accepting payment cards and settling obligations arising from the use of payment cards;
c) The Guest System of the Payment Service Provider is a technical guest system specified by the Payment Service Provider, which was accepted and implemented by Company B in its system for the purpose of performing Transaction Switching (in English: Transaction Switching);
d) The contract is together all the following documents concluded between the Merchant and B: Application for POS, these GTC, Price List and Operating Manual (in English: Operating Guide);
e) Working Day means every working day between Monday and Friday (inclusive), with the exception of non-working days and public holidays established by legal regulations in the Slovak Republic;
f) Confidential Information has the meaning given in Article 13.1;
g) Uninstallation fee has the meaning given in Article 6.4;
h) Effective Date has the meaning given in Article 2.1;
i) Equipment means the equipment specified in the POS Application, which will be delivered in accordance with the terms of the Agreement, including the Accessories specified in the POS Application;
j) Call Center B means a special telephone number on which B provides a 1st and 2nd level assistance service (in English: Helpdesk);
k) GTC are these general terms and conditions relating to the Agreement on the provision of the POS Terminal;
l) Merchant is the merchant listed in the POS Application;
m) Business location is an establishment or other business location of the Merchant in which the POS Terminal is located;
n) Minimum Rental Period has the meaning given in Article 6.3;
o) Monthly Rent has the meaning given in Article 6.2;
p) PCI/DSS means the Payment Card Industry Data Security Standards, as established by VISA and MasterCards;
q) Request for POS means the Merchant's proposal to conclude a Contract for the provision of a POS Terminal;
r) POS purchase has the meaning given in Article 4.1;
s) POS rental has the meaning given in Article 4.1;
t) The price list is the price list published or provided to B Merchant, which contains fees for Equipment, accessories and other fees for services offered to B, as amended;
u) The Product Specification is a separate product specification that forms part of the POS Application, or is an attachment to the POS Application that further defines the Device;
v) The Rental Period is the period during which B provides the Equipment to the Merchant in accordance with the POS Rental option;
w) Software has the meaning set forth in Article 8.1;
x) Warranty Period has the meaning given in Article 5.3.
4. CONTENTS OF THE AGREEMENT
4.1 Depending on which option the Merchant chose in the POS Application, B will (i) sell the Device to the Merchant pursuant to Article 5 ("POS Purchase"), or (ii) lease the Device to the Merchant pursuant to Article 6 ("POS Rental"), for conditions stated in these GTC. If the Request for POS does not indicate whether the Merchant is interested in Renting a POS or Buying a POS, or if both options are selected, the Device will be provided to the Merchant in the form of a POS Purchase.
4.2 The device will correspond to the specification stated in the POS Application and the Product Specification, if it has been made, and is provided solely for the purpose of using it to carry out electronic payment card transactions. Subject to Article 3 B, during the duration of the POS Terminal Provision Agreement, the POS Terminal will be connected to its host system and will enable the transfer of payment transactions from and to the Host system of the Payment Service Provider ("Transaction Transfer").
5.1 The provisions set forth in this Section 5 apply only to the sale of the Equipment to the Merchant (if the option "Purchase POS" is selected in the POS Application).
5.2 Purchase of Equipment: The Merchant purchases the Equipment from B at the price for the POS Purchase specified in the Price List, or at a price otherwise agreed in writing between the Merchant and B.
5.3 Warranty: B warrants that during a period of 12 months from the date of delivery of any parts ("Warranty Period") to the Merchant, the Device will be free from manufacturing, mechanical or electronic defects ("Limited Warranty"). The Limited Warranty does not apply to cases of (i) network failure or inappropriate operation preparation, (ii) accidents, vandalism, damage, improper use of the Equipment (including negligence of the Merchant), (iii) natural disasters such as damage due to floods or due to lightning, ( iv) failure to comply with the instructions regarding the use of the Device specified in the Operating Manual or other instructions of B to the Merchant, (v) malfunctions or damages caused by any software, resources, accessories or other additional external equipment not provided to the Merchant by B, (vi) malfunctions or damages caused by the Merchant , including unauthorized modification or repair. The parties acknowledge and agree that battery and accumulator units will reach their maximum useful life much more quickly if the Equipment is not continuously connected to an electrical power source (for example, during seasonal closures) or, in the case of accumulator units, repeatedly fully discharged and recharged. loaded.
5.4. Warranty service will be provided as follows:
a) The Merchant is obliged to report all failures of the Equipment to the Call Center B. B will try to solve the causes of the failure of the Equipment and restore its operation via remote access through B's assistance service (1st and 2nd level support). B's assistance service will try to restore the operation of the Equipment through a telephone conversation with the Merchant, and the Merchant is obliged to follow and comply with all instructions of B in order to restore the operation of the Equipment.
b) In the event that the Device cannot be put into operation through B's assistance service, B's 2nd level support will ensure that the defective Device is picked up by a courier and delivered to B. After delivery, B will evaluate the nature of the Device's malfunction. If the Device has a defect covered by the Limited Warranty, B will replace such Device free of charge and provide the Merchant with a suitable replacement Device.
5.5 The device will comply with PCI/DSS requirements at the time of sale and during the Warranty Period. After the expiration of the Warranty Period, B does not guarantee and is not responsible for the compliance of the Device with PCI/DSS or with any other requirements applicable to the Device. Except for the above responsibility for PCI/DSS compliance during the Warranty Period and Limited Warranty, B is not responsible for the use or maintenance of the Equipment and Accessories, their malfunction, their repair or service.
5.6 The B charges listed in the Price List apply to (i) the repair or replacement of the Equipment in connection with its damage or failure not covered by the Limited Warranty during the Warranty Period, and (ii) any repair or replacement of the Equipment after the expiration of the Warranty Period, and ( iii) provision of a replacement Device during the duration of the repair or replacement in the event that the repair or replacement of the defective Device is not covered by the Limited Warranty.
5.7 Removal of Software: Upon expiration of the duration of the Agreement, or upon termination of the Agreement, or whenever the POS Terminal is out of service (for reasons other than temporary maintenance or seasonal suspension of operation), the Merchant shall allow B to remove and delete the Software installed in the POS Terminal, and for this purpose, B will provide all necessary cooperation. Based on B's request, the Merchant shall (i) allow B physical access to the POS Terminal at the Merchant's place of business for the purpose of removing and deleting the Software, (ii) remove or delete the Software according to B's instructions and, upon B's request, confirm the removal/deletion of the Software, or (iii) will send the POS Terminal at its own expense for the purpose of removing and erasing the Software to Company B in its operation. B returns the POS Terminal to the Merchant after removing and erasing the Software in its operation.
5.8 Ordering a device through the e-shop does not constitute an automatic purchase of the device. After sending the order through the e-shop, the customer will then be contacted by the sales department and the order will be processed as a POS Request.
6.1 The provisions set forth in this Section 6 apply only to the rental of the Equipment to the Merchant (if the "POS Rental" option is selected in the POS Application).
6.2 Rental of Equipment (hereinafter referred to as "POS Rental"): The Merchant rents the Equipment from B for the monthly rent specified in the POS Application, or for the monthly rent for the POS Rental specified in the Price List, or for another price agreed between the Merchant and B in writing form ("Monthly Rent"). B is the owner of the Device and is authorized to provide the Merchant with a Device of a different type than that specified in the POS Request, as long as the specification and features of the provided Device are at a similar level to the Device specified in the POS Request.
6.3 Rental period: The Merchant rents the Equipment for a fixed period of 36 months, or another rental period agreed between the Merchant and B in writing ("Minimum Rental Period"), which runs from the day the Equipment is delivered to the Merchant. The parties have agreed that after the expiration of the period according to the previous sentence, the equipment rental period is automatically extended by 12 months, until the equipment rental is terminated by a written notice with 1 month's notice sent by one of the parties the other Contracting Party.
6.4. If the Merchant unilaterally terminates the Contract or POS Lease in relation to a specific POS Terminal / Terminals before the Minimum Lease Period expires, or before the expiration of the automatically extended period according to Article 6.3, or if B terminates the Agreement in accordance with Article 4, the Merchant is obliged to pay an uninstallation fee in the amount of EUR 60 (sixty euros) excluding VAT within 15 days of receiving B's invoice ("Uninstallation Fee"). In addition, if the Merchant unilaterally terminates the Contract or the POS Lease in relation to a specific POS Terminal / Terminals before the end of the Minimum Lease Period, or before the expiry of the automatically extended period according to Article 6.3, or if B terminates the Agreement in accordance with Article 12.4, the Merchant is also obliged to pay within 15 days of receiving B's invoice a contractual penalty in the amount that he would otherwise be obliged to pay for POS Rental in the form of Monthly Rent in the period from the termination of the Contract or POS Lease to the end of the Minimum Lease Period, or until the end of the automatically extended period according to Article 6.3.
6.5 During the Rental Period, the Device will not have manufacturing, mechanical and electronic defects and will comply with the relevant PCI/DSS requirements. With the exception of Articles 4 and 7.5 below, B shall bear all costs of maintaining the Equipment (repairing or replacing it).
6.6 The Merchant is obliged to report all failures of the Equipment to Call Center B. B will try to solve the causes of the failure of the Equipment and restore its operation via remote access through B's assistance service (1st and 2nd level support). B's assistance service will try to restore the operation of the Equipment through a telephone conversation with the Merchant, and the Merchant is obliged to follow and comply with all instructions of B in order to restore the operation of the Equipment. In the event that the Device cannot be put into operation through assistance service B, 2nd level B support, at its own discretion: (i) visits the Merchant's premises in order to repair the Device, or (ii) arranges for the collection of the defective Device in operation Merchant by courier and will provide a replacement Device. B will evaluate the nature of the Device's malfunction during a visit to the Merchant's premises or after delivery of the Device.
6.7 Fees B listed in the Price List apply to the repair or replacement of the Device in connection with damage or malfunction in the event of i) network failure or inappropriate operation preparation, (ii) accidents, vandalism, damage, improper use of the Device (including negligence of the Merchant), (iii) ) failure to comply with the instructions regarding the use of the Device specified in the Operating Manual or other instructions B to the Merchant, (iv) malfunctions or damages caused by any software, resources, accessories or other additional external equipment not provided to the Merchant, (v) malfunctions or damages caused by the Merchant, including malfunctions and damages caused by unauthorized modification or repair. B's fees set out in the Price List also apply to cases where B arrives at the Merchant's place of business for the purpose of carrying out repairs or maintenance, but these cannot be carried out for reasons on the Merchant's side, or in the event that the Merchant has asked B for maintenance or repair in the Merchant's operation, but no malfunction or failure of the Equipment was detected. The parties acknowledge and agree that battery and accumulator units will reach their maximum useful life much more quickly if the Equipment is not continuously connected to an electrical power source (for example, during seasonal closures) or, in the case of accumulator units, repeatedly fully discharged and recharged. loaded. The merchant is obliged to keep the Device continuously connected to the power source (except in cases of routine repair or maintenance.)
6.8 The trader shall not create, enable or permit the creation of any encumbrance or right of a third party in relation to the Equipment, or its part, by agreement or court decision, without the prior written consent of B, and is not authorized to sublease the Equipment, or its part, or sublease them rent without the prior written consent of B.
6.9 Return of the Device: Within 5 working days after the expiration of the term, or after the termination of the Agreement, or the end of any Rental Period, in relation to a specific POS Terminal for any reason, the Merchant shall ensure the availability of the POS Terminal for collection by B (or an authorized contractual partner of B) at the address Merchant on a date that will be notified to the Merchant in advance by B. In the event that B is not allowed to take over the POS terminal from the Merchant on the announced date, B will notify the Merchant of a new date for taking over the POS terminal. If B is not allowed to take over the POS terminal even at the replacement date, such POS Terminal will be considered lost and the Merchant will be obliged to pay B a loss fee of 350 euros excluding VAT. The Merchant is obliged to return all Equipment cleaned, in good condition and able to operate (with the exception of normal wear and tear). If the Merchant returns a defective or damaged Device or a Device that is not in operational condition due to an unauthorized change in physical appearance, unauthorized marking, dirty or similar, B is entitled to a repair fee of 80 euros excluding VAT. In the event that the Device cannot be repaired, or if the repair is disadvantageous from a commercial point of view, B is entitled to payment of the amount for a new Device.
7. COMMON PROVISIONS FOR POS RENTAL AND POS PURCHASE
7.1 The provisions stated in this Article 7 apply to the provision of Equipment in the form of POS Purchase as well as POS Rental.
7.2 Delivery: The device will be delivered to the Merchant by courier to the address specified in the POS Application, or to another address confirmed in writing by the Parties.
7.3 Changing the settings of the Device: The device may allow certain parameters or settings to be changed according to the Product Specification. For changes in the settings of the Device requested by the Merchant, the Merchant is obliged to pay B the amounts specified in the Price List or other amounts determined by B. Changes in the settings of the Device can be made by B remotely or at the place of operation, depending on the technical requirements.
7.4 Installation: The Merchant will install the Device himself (self-installation) based on the installation instructions received from B in the form of a document sent together with the Device, or separately in electronic form. All POS Terminals will have SLL Internet connection and the Merchant will connect the POS Terminal to the Internet. The merchant is obliged to ensure the continuous supply of electricity and telecommunication/internet connection and to fulfill other technical requirements to ensure the installation and operation of the Equipment, which B notified him. B will provide the Merchant with a special installation code via SMS or email, which the Merchant must enter into the POS Terminal during installation. Installation at the Merchant's place of business by Company B is not included in the price, but can be provided at the Merchant's request for an additional fee listed in the Price List.
7.5 Operation: The Merchant (i) is obliged to ensure that the Equipment is operated and used exclusively for the purposes specified in the Agreement by qualified persons in accordance with the Operating Manual and all relevant operating instructions provided to B; (ii) during the Warranty Period (in the case of a POS Purchase) or during the Rental Period (in the case of a POS Rental), he is obliged to keep the Equipment in good working order (with the exception of normal wear and tear); (iii) may not permit or permit any physical change or modification of the Equipment, or change of location of the Equipment, without B's prior written consent; (iv) is obliged to allow Company B or its representatives to enter the Merchant's premises during normal working hours or at other times for the purpose of checking, testing, or repairing or modifying the Equipment; (v) is obliged to keep the Equipment connected to the Internet or telecommunication networks according to B's requirements and (vii) must not tamper with labels or marks on the Equipment proving the ownership of the Equipment by B (in the case of POS Rental).
7.6 Certain POS Terminals supplied by Company B work with temporary data SIM cards. SIM cards supplied by Company B can be used exclusively for reports on credit / debit transactions or reports on Devices supplied by Company B. The Merchant is responsible for all costs associated with the unauthorized use of SIM cards from Company B in the event of delivery of a POS Terminal to the Merchant in accordance with the Agreement.
7.7 The Merchant is obliged to notify Company B of all changes to the card acceptance conditions stipulated in the contract between the Merchant and the Payment Service Provider, or based on the contract between the Merchant and the Payment Service Provider, or technical changes to the Payment Service Provider's host system.
8.1 The Device is provided with pre-installed payment applications, security keys and other software ("Software") which is necessary for the proper functioning of the Device in accordance with its functionality and for the execution of Transfer Transactions. For the duration of this Agreement, B grants the Merchant a non-exclusive, non-transferable, limited license to use the Software for the purpose of Passing Transactions when using the Device.
8.2 During the term of the Agreement, B shall be entitled at its sole discretion to maintain, update, modify, change, replace or replace any part of the Software and B shall bear all costs related to such change, modification, replacement or replacement. The Merchant is obliged to keep the POS Terminals connected (online) for remote maintenance and downloading of the Software and is obliged to perform other necessary actions required by B in connection with the above.
8.3 The merchant is not authorized to make available, copy, change, modify, decompile (obtain source code), translate, disassemble, or otherwise detect by any means any part of the Software or remove (dismantle), delete, block, update, modify or otherwise change or deactivate the Software in the POS Terminal. The merchant is not authorized to allow third parties to access, copy, change, modify, decompile (obtain source code), translate, disassemble, or otherwise detect by any means any part of the Software or remove (disassemble), delete, block, update, modify or otherwise way to change or deactivate the Software in the POS Terminal.
9. DEPENDENCY OF THIRD PARTIES
9.1 The Merchant acknowledges that the Device may not be compatible with the Merchant's or third-party systems, including, but not limited to, any electronic cash register systems, and B is not obligated to ensure the Device's compatibility with the Merchant's or third-party systems.
9.2 Wireless POS Terminals may be subject to limitations affecting their performance, coverage, reliability and ability to process transactions. If the Merchant operates wireless POS Terminals, the Merchant hereby confirms that it is aware of and agrees to the limitations, obligations and responsibilities affecting the wireless POS Terminals, which are set forth in the Product Specification, if it is made, or which have been otherwise notified to it by Company B.
9.3 Company B's obligation to provide the Equipment and fulfill its obligations under this Agreement are expressly conditioned on timely performance by the Merchant and any third party engaged by the Merchant and its respective duties and obligations, including, but not limited to, the supply of energy and operation of the telecommunications line and networks necessary for the operation of the Device. B is not responsible for telecommunications networks operated by third parties or the Device's connectivity to such networks.
10.1 The Merchant undertakes to pay the relevant fees for the Equipment and for other services provided under this Agreement. The relevant fees for the Equipment, Accessories and other services of Company B are listed without VAT.
10.2 Monthly Rent and other recurring payments will be billed monthly and all other amounts will be billed within 15 days of delivery unless otherwise stated.
10.3 If the Merchant is in arrears with the payment of the relevant amount under this Agreement, the Merchant is obliged to pay interest on the delay in the amount of 0.05% per day of the amount due, from the day immediately following the due date until payment. If the Merchant fails to pay any amount due under this Agreement, B is entitled, but not obligated, to send the Merchant a written demand for payment. If the Merchant is in arrears with the payment of any amount due for more than 30 days, B is entitled to suspend the provision of all services under this Agreement, until payment of the amount due together with interest on the delay. The suspension of the provision of services due to non-payment of a due obligation by the Merchant is not a breach of B's obligation under this Agreement, and B is not responsible for any claims in connection with the suspension of the provision of services. If the Merchant is in arrears with the payment of any amount due for more than 60 days, B is entitled to withdraw from this Agreement with immediate effect.
10.4 The merchant hereby authorizes and enables B to pay the due receivables in the form of SEPA direct debit between businesses (in English: SEPA Business To Business Direct Debit process), unless the POS Application stipulates otherwise. For the duration of this Agreement, the Merchant is obliged to maintain a positive balance on the account specified in the POS Application for the purpose of payment of receivables B in the form of SEPA direct debit according to this Agreement. If payment via SEPA direct debit between businesses is not specified in the POS Application, all invoices are payable to the Merchant within 5 Working Days after delivery of the invoice, in euros by electronic transfer to the bank accounts designated by Company B.
11.1 Unless otherwise stated in the Contract or in these GTC, in the event of a breach of individual contractual obligations of the Parties, the injured Party shall, pursuant to § 373 et seq. Act No. 513/1991 Coll. of the Commercial Code, as amended, the right to compensation for damages incurred in connection with the breach of contractual obligations of the other Party, unless the breaching Party proves that the breach of obligations was caused by circumstances excluding liability in accordance with the relevant provisions of the Commercial Code.
11.2 In the event that the Merchant (i) violates the obligation to refrain from any interference with the POS terminals and their Software, (ii) violates the terms of the license for the works that are part of the POS Terminal Software according to these GTC, or (iii) undertakes other unspecified actions in order to carry out a fraudulent payment or other unauthorized operation using the POS terminal, regardless of whether it is a demonstrably identified fraudulent unsuccessful or successful attempt, the Merchant is obliged to pay B a contractual fine in the amount of EUR 5,000 (in words: five thousand euros) for each individual case of violation.
11.3 In the event that the Merchant violates any other obligation under the Agreement or GTC, and does not remedy this violation even within five (5) calendar days from the date of delivery of a written notice of this violation by B, the Merchant is obligated to pay B a contractual fine of 50, - EUR (in words: fifty euros) for each individual case of violation, including for each calendar week of delay in fulfilling the obligation in question. If the violation concerns several Business locations, the contractual penalty will be applied to each affected Business location separately.
11.4 The merchant is obliged to fulfill the obligation, the fulfillment of which was ensured by the contractual fine, even after its payment. Payment of the contractual fine also does not affect B's claim to compensation for damages caused by this breach in its entirety.
12. CONTRACT DURATION
12.1 This Agreement enters into force on the Effective Date and is concluded for a fixed period of 36 months. The parties have agreed that after the expiration of the period according to the previous sentence, the Agreement is automatically extended by 12 months, until the moment when the Agreement is not terminated in one of the ways specified in this Agreement.
12.2 The contract can be terminated by written agreement of the Parties.
12.3 Each of the Parties may terminate this Agreement by written notice even without giving a reason with a notice period of one (1) month, which begins on the first (1st) day of the calendar month following the month in which the written notice was delivered to the other Party. The parties have agreed that the termination of the Agreement based on the termination of one of the Parties in accordance with this point may occur at the earliest after the expiration of the binding period of the Agreement (this also applies in the case of an automatic extension of the agreement by 12 months). If the written notice of one of the Parties is delivered to the other Party earlier than one (1) month before the expiration of the binding period of the Contract, the length of the notice period is extended so that it expires simultaneously with the expiration of the binding period of the Contract.
12.4 B is entitled to withdraw from this Agreement in writing for any of the following reasons:
a) if the Merchant does not pay the relevant amount according to Article 3;
b) in case of making or attempting to make a fraudulent payment by payment card or other unauthorized operation on the part of the Merchant (including operations towards third parties), non-compliance with established limits for authorization or deliberate alteration of accounting documents when accepting payment cards, or reasonable suspicion of such an action.
c) repeated justified claims and complaints from the Merchant's customers about deficiencies associated with the use of the Merchant's POS Terminals.
d) if, in relation to the Merchant, there is a filing of a proposal to declare bankruptcy for the Merchant's assets, a proposal to allow the Merchant's restructuring, the Merchant's entry into liquidation or a fundamental deterioration of the Merchant's financial conditions, which may, in B's opinion, have a significant impact on the Merchant's ability to properly fulfill its obligations from the Contract;
e) if the Merchant stops accepting payment cards or does not have a valid contract for accepting payment cards with the Payment Service Provider, and the technical specification of which is included by company B in the Transaction Transfer Device;
f) if the Merchant seriously violates any provision of this Agreement, including Article 5, and does not correct such violation within 30 Business Days following written notification of the violation to the Merchant, specifically referring to this Article 12.4f);
g) if the Merchant is listed on any official sanctions list, including the sanctions lists of the US Office of Foreign Assets Control (OFAC), the EU sanctions list and the Bank of England.
12.5 The Merchant is entitled to withdraw from this Agreement in writing for any of the following reasons:
a) if, in relation to B, there is a filing of a proposal to declare bankruptcy for B's assets, a proposal to authorize B's restructuring, B's entry into liquidation or a fundamental deterioration of B's financial conditions, which, in the Trader's opinion, may have a significant impact on B's ability to properly fulfill its obligations from the Contract;
b) if B seriously violates any provision of this Agreement and does not correct such violation within 30 Business Days following the written notification of B's violation, specifically referring to this Article 5b).
12.6 In the event of termination of the Agreement by withdrawal from the Agreement in accordance with these GTC, the Agreement shall terminate on the date of delivery of the written notification of withdrawal from the Agreement by the withdrawing Party to the other Party. Withdrawal from the Agreement does not affect (i) B's claim to payment of fees for services provided, (ii) B's claim to payment of sanctions, (iii) B's claim to compensation for damages, (iv) contractual provisions regarding choice of law, choice of law and solution disputes and (v) other provisions which, according to the will of the Parties or due to their nature, should last even after the termination of the Agreement.
12.7 The parties have agreed that the Agreement can be terminated exclusively by the methods specified in this article. 12; any other ways of terminating the Agreement, resulting from the generally binding legal regulations of the Slovak Republic, are expressly excluded, to the widest possible extent, to the extent that such exclusion does not contradict the provisions of the generally binding legal regulations, from which it is not possible to deviate.
13.1 Confidential Information is:
a) any data or information that is commercially and competitively sensitive data and is not publicly available and known, including but not limited to products, information about plans, marketing strategies, finances, operations, customer relations, customer profiles, estimated sales , business plans, and business results in the past, current and future business results of B or the Merchant, their related persons, customers, clients and suppliers;
(b) any scientific or technical information, design, process, process, formula or improvement which has commercial value and is confidential, the confidentiality of which gives B or the Merchant or any of their affiliates a competitive advantage over their competitors; a
c) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flowcharts, databases, inventions, information, know-how and trade secrets, whether or not patentable or subject to copyright.
13.2 Except as permitted by prior written notice to the other party, each party:
a) restrict the access of its employees or employees of its related persons to the Confidential Information it has received, only to those who need to know about it in connection with the exercise of rights and obligations under the Agreement;
b) instructs its employees who have access to Confidential Information about its confidential nature and about the obligation to maintain confidentiality under this Agreement;
c) ensure the protection of Confidential Information, at least at the same level as it provides for the protection of its own information and materials similar to Confidential Information;
d) will not disclose or make available any Confidential Information it has received to third parties;
13.3 The obligation of confidentiality and restrictions do not apply to any Confidential Information that:
a) were publicly available before the conclusion of this Agreement or subsequently became publicly available through no fault of the recipient of the Confidential Information;
b) were lawfully obtained by their recipient from a third party without the obligation to maintain confidentiality in relation to such third party;
c) the party in accordance with the law already had at their disposal before their delivery, directly or indirectly, from a third party;
d) must be disclosed in judicial or administrative proceedings, or on the basis of a decision of a state authority, or must be disclosed on the basis of law, in each of these cases, if possible, the relevant party shall notify the other party of the obligation to disclose and allow the other party to has made reasonable efforts at its own expense to prevent disclosure;
e) are subsequently and independently created by the recipient's employees, advisors or representatives regardless of the Confidential Information provided under this Agreement; or
f) are published by the recipient based on the prior written consent of the other party.
13.4 In the event that before the conclusion of the Agreement or as part of its performance, the Merchant provides B with his personal data (if the Merchant is a natural person) or the personal data of another natural person (a person authorized to act or exercise specific rights from the Agreement in the name and on behalf of the Merchant), hereinafter referred to as the "data subject", B will process the personal data of the data subject for the purpose of fulfilling the Agreement or to take measures based on the Merchant's request before concluding the Agreement, on the legal basis according to Art. 6 par. 1 letter b) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons in the processing of personal data and on the free movement of such data, which repeals Directive 95/46/EC (General Data Protection Regulation) ( hereinafter referred to as the "GDPR Regulation"). The merchant provides B with the personal data of the person concerned to the extent necessary for the conclusion and performance of the Agreement. B will process the personal data of the person concerned for the duration of the Agreement; after the termination of the Agreement, B will process the personal data of the person concerned only if it is necessary to achieve the given purpose of processing, in particular for the needs of invoicing, receiving and recording payments, handling complaints and exercising rights and fulfilling obligations in accordance with the GDPR Regulation and special legal regulations. B is further authorized to process the personal data of the person concerned for the purpose of properly fulfilling B's legal obligations according to the GDPR Regulation and special regulations, on the legal basis according to Art. 6 par. 1 letter c) Regulations of the GDPR and for the purposes of B's legitimate interests, which are mainly the exercise or defense of B's rights and legal claims against the affected person from the Contract or in connection with it, on the legal basis according to Art. 6 par. 1 letter f) GDPR Regulations, but always only to the extent necessary and in accordance with the GDPR Regulations. The legitimate interest of B's personal data processing is also informing the Merchant about B's products and services, and sending advertising and promotional materials and business correspondence, i.e. j. direct marketing, on a legal basis according to Art. 6 par. 1 letter f) GDPR regulations. The merchant acknowledges that the Agreement includes Information on the processing of personal data intended for the affected persons, by providing which B fulfilled his obligation to provide information to the operator when obtaining the personal data of the affected person in accordance with Art. 13 and 14 of the GDPR Regulations.
13.5 In the event that the Merchant makes available and enters or in another form provides or directly or indirectly makes available the personal data of third natural persons (affected persons, in particular the Merchant's employees exclusively to the extent necessary for the purposes of fulfilling the Agreement), the Merchant will act in the given relationship in a legal capacity the position of the operator and B in the legal position of the intermediary. A closer regulation of the legal relations of the Merchant as an operator and B as an intermediary will be the subject of the contract on the processing of personal data pursuant to Art. 28 par. 3 of the GDPR Regulation, which is concluded simultaneously with the Agreement. The merchant declares that it has a proper legal basis for processing the personal data of affected persons in accordance with the GDPR Regulation and is aware of its obligations as an operator in accordance with the GDPR Regulation and Act No. 18/2018 Coll. on the protection of personal data and on the amendment of certain laws. If the Trader's statement according to the previous sentence turns out to be false or becomes so, and in this connection any sanctions are imposed on B, the Trader undertakes to fully indemnify B and reimburse B for any related costs.
14. MISCELLANEOUS PROVISIONS
14.1 This Agreement and all relationships related to it are governed by the relevant provisions of Act No. 513/1991 Coll. Commercial Code as amended.
14.2 The express provisions of the POS request take precedence over the provisions of the General Terms and Conditions and the Price List, with which they conflict.
14.3 This Agreement supersedes all prior or contemporaneous arrangements and agreements between the parties in relation to the subject matter of this Agreement and is the entire agreement with respect to its subject matter.
14.4 If any court decides that any provision of this Agreement is invalid or unenforceable, such provision will be replaced by such valid and enforceable provision that reflects the intent of the parties and the meaning of the original provision.
14.5 B is entitled, based on prior written notice to the Merchant, to transfer and assign all or any of its rights and obligations under this Agreement to a third party who is duly authorized to offer services under this Agreement to the Merchant. The rights and obligations of the Merchant belong exclusively to the Merchant and are not transferable without the prior written consent of B, regardless of whether the transfer is made on the basis of a contract or by law.
14.6 B can provide part or all of the services provided through a subcontractor. B has the right to choose subcontractors at its own discretion.
14.7 B is entitled to unilaterally change these GTC or the Contract at any time by means of a written notice (including email) of the relevant changes to these GTC or the Contract to the Merchant. Changes to these General Terms and Conditions or the Agreement will take effect upon the expiration of a period of 2 months following the notification of the changes to the Merchant, unless the Merchant objects to these changes within the specified 2-month period after their notification. In the event that the Merchant objects to changes to the General Terms and Conditions or the Contract notified to B, B has the right to terminate the Agreement by giving written notice to the Merchant with a notice period of 1 (one) week. General terms and conditions or other usual conditions of purchase or provision of the Merchant's services do not apply and are expressly excluded.