General Business Terms and Conditions relating to the Contract for the Provision of Software Services – NAVsystem
Provider: NAV Flight Services, s.r.o.
Registered office: Karlovarská 814/115, 161 00 Prague 6 – Řepy
Registered in the Commercial Register of the Municipal Court in Prague, Section C, File No. 66001
1. Introductory provisions
- 1.1. These General Business Terms and Conditions form an integral part of the Contract for the Provision of Software Services – NAVsystem.
- 1.2. In the event of any discrepancies between the provisions laid down herein and the provisions laid down in the Contract, the following order shall be adhered to:
- a) Contract
- b) General Business Terms and Conditions
2. Definition of terms
- 2.1. Licence: time-limited, non-exclusive and non-transferable right to use the Software.
- 2.2. Service: removing critical and less serious defects of the System.
- 2.3. Contract: Contract for the Provision of Software Services – NAV system, concluded between the Provider and the Client.
- 2.4. Software Services: services provided by the Provider through the web application.
- 2.5. System / Software: NAV system software supplied by the Provider.
- 2.6. GBTC: General Business Terms and Conditions.
- 3.1. Granting of the Licence and upgrade
- 3.1.1. In addition to the right to use the Software, the Client may also use the documentation relating to the System.
- 3.1.2. The Provider reserves the right to upgrade the System or otherwise modify the System. Any substantial changes in the System shall be communicated by the Provider to the Client in writing.
- 3.2. Other licence conditions
- 3.2.1. The Client acknowledges that for the proper use of the System it is necessary to use the System with hardware and software meeting the requirements specified by the Provider in writing, or as recommended by the Provider.
- 3.2.2. The Client must notify the Provider promptly in writing of any change that has or could have any impact on its use of the System.
- 3.2.3. The Client acknowledges that the System is a software work and that as such it responds to the circumstances applied to it during its operation; these responses may involve unexpected interruptions of the action performed, the need to re-enter the command to perform an action, or other difficulties in the course of its use and operation. The Parties to the Contract unanimously state that such rare and transient responses of the System may not and shall not be considered a defect of the System. However, the Provider must provide the Client with any and all possible expert assistance in overcoming such situations.
- 3.2.4. The Client
- a) must use the Software solely for its own internal purposes, in accordance with the purpose for which the Software was created,
- b) may not distribute or copy the Software or otherwise allow the use of the Software by other persons, unless agreed otherwise in writing in advance by the Parties to the Contract,
- c) may not, without the express prior written consent of the Provider, transfer in whole or in part the rights to the Software or any part thereof, provided by the Contract, to any third party, unless agreed otherwise in writing in advance by the Parties to the Contract,
- d) may neither modify the Software nor create derivative works from the Software. The Client may not reverse engineer, decompile, disassemble or otherwise attempt to derive any of the source codes of the Software.
- 3.3. Revocation of the Licence
- 3.3.1. After a prior ignored written notice, the Provider may unilaterally revoke the Licence if the Client grossly or repeatedly violates the rules for the use of the System stipulated by legislation or specified in the Contract and/or in the GBTC, or if the Client thus breaches any other of its obligations under the Contract and/or the GBTC, as well as in other cases specified in the Contract and/or in the GBTC.
- 3.3.2. In the event of revocation of the Licence, the Client must refrain from using the System. The Provider may perform any technical intervention to prevent the Client from further use of the System, and the Client must allow the Provider to undertake, or may not prevent the Provider from undertaking, such technical intervention.
4. Other provisions
- 4.1. The Client undertakes to provide the necessary assistance requested by the Provider, as well as information and documentation necessary to perform support within the mutually agreed time limits, unless the time limits of performance are agreed in the Contract and the GBTC.
- 4.2. If necessary, the Client shall provide assistance through its authorized person (system administrator or, as the case may be, other authorized person), e.g. in providing diagnostic information to the Provider, in the event of temporary restriction of user access, during installation and verification of repairs, etc.
- 4.3. When reporting defects or any other requirements, the Client shall state all the circumstances known to the Client, true and unbiased information and other data relevant to the successful and timely provision of support.
- 4.4. The Client shall request (by email) the consent of the Provider with any and all new software and hardware which the Client intends to purchase, in order to ensure that the Software functions perfectly – i.e. minimum hardware and software configuration. In the event of a breach of this obligation the Provider shall not be liable for any defects or damage arising from the failure to comply with the minimum hardware and software configuration.
- 4.5. If the Client is AOC holder, undertakes to supply the Provider with its AOC, including attachments with the specifications included the “Tail Numbers” immediately after its acquisition or update.
- 4.6. The Client undertakes to inform the Provider of the withdrawal of any aircraft from operation if such withdrawal lasts 30 or more consecutive days. The aircraft shall be withdrawn from registration, and the amount invoiced in a given month shall be reduced. In the event that the Client fails to perform this notification properly and in a timely manner, the invoice shall include the aircraft without the possibility of a price reduction. The notification must be delivered in writing at least 30 days before the required date.
- 4.7. The Provider may suspend the provision of Software Services in the event that the Client is in arrears with payment or any other financial performance, or with the performance of any other obligations under the Contract, for more than 14 days. If the provision of Software Services is interrupted in this way, it may only be activated after a remedy is provided by the Client. In such cases, the Provider may charge a fee for the re-activation of Software Services in the amount specified in the Contract.
- 4.8. Reference
- 4.8.1. The Provider may disclose the fact that the Client is a software user in its information and advertising materials or reference sheets, and it may also disclose this information via the Internet or any other means of communication (hereinafter referred to as the “Reference”). For this purpose, the Provider may also use the Client’s current logo or, as the case may be, its brief description.
- 4.8.2. The manner in which the Reference is used must not negatively affect the Client’s good reputation.
5. Confidential information
- 5.1. The Parties to the Contract mutually undertake to maintain confidentiality of any and all relevant facts obtained during their activities arising from the Contract and the GBTC, especially the facts forming their trade secrets and confidential information.
- 5.2. The Parties to the Contract shall consider as confidential information any facts of an operational or commercial nature which either Party to the Contract becomes acquainted with in connection with the activities under the Contract, which are not publicly available, and which are identified as such by the Party to the Contract.
- 5.3. The Parties to the Contract shall also classify as confidential information trade secrets, which, pursuant to Section 504 of the Civil Code, shall mean competitively significant, identifiable, valuable and, in relevant business circles, normally inaccessible facts related to the enterprise, and whose owner adequately ensures, in its own interest, their confidentiality. The trade secret shall mean, in particular, the Client’s data processed by the Software.
- 5.4. Breach of confidential information shall mean an act by which either Party to the Contract unlawfully discloses or makes available confidential information to any third party, or uses confidential information gained in its operation from the other Party to the Contract for itself or for any other third party, if it is contrary to the interests of the other Party to the Contract, and if the Party to the Contract does so without the other Party’s consent.
- 5.5. Breach of confidentiality shall not mean:
- a) provision of confidential information to the extent necessary to authorities or persons being entitled by law to obtain such information and to inspect the operation of the Parties to the Contract;
- b) provision of confidential information to persons legally bound by confidentiality obligations (e.g. notary, attorney, tax advisor);
- c) use of confidential information in accordance with the Contract or contracts subsequently related to the Contract in relation to the fulfilment of obligations under the Contract and the GBTC;
- d) provision of the Client’s data or provision of access to the data to third parties in order to resolve operational incidents (removal of defects, etc.) or, as the case may be, expansion of the Client’s System, but only to the extent necessary – in such cases, the Provider shall instruct these persons that the information is the Client’s confidential information;
- e) other use of confidential information with the prior written consent of the other Party to the Contract.
- 5.6. This confidentiality obligation shall be binding on the Parties to the Contract for the duration of the facts constituting the confidentiality obligation, unless they are released from the confidentiality obligation or unless the information becomes publicly available.
- 5.7. The Parties to the Contract shall maintain confidentiality of any and all confidential information even after the termination of the Contract.
6. Liability for damages, legal defects, guarantee
- 6.1. Liability for damages
- 6.1.1. The Provider shall be liable for any damage it causes by breaching any obligation of the Contract or the GBTC. The Parties to the Contract have agreed that the amount of damages shall only be limited to the actual damage, up to the amount equal to 50% of the price paid by the Client for the last three months. Furthermore, the Provider shall not be liable for any lost profits of the Client.
- 6.1.2. The Provider shall not be liable for any damage caused by any defects of the System if caused by the Client, third parties or the circumstances set out below.
- 6.1.3. The Provider shall not be liable for the accuracy of the output of the System, due to the fact that this output is dependent on the data provided by the Client and the data provided by third parties. Furthermore, the Provider shall not be liable for the accuracy of data provided by third parties which is provided to the Client as part of Software Services. This output shall only form the basis for actual solutions adopted by the Client at the Client’s own responsibility.
- 6.1.4. The Provider shall not be liable for any damage resulting from the circumstances beyond the control of the Provider which may be described as circumstances excluding liability; if such a circumstance occurs, the Provider shall notify it to the Client without undue delay. For the purposes of the Contract and the GBTC, circumstances excluding liability shall, in particular, include the following:
- a) penetration of viruses into the information system of the Client or, as the case may be, any other similar attack;
- b) obstacles caused by any strike of the Client’s employees, i.e. due to partial or complete interruption of work by the employees;
- c) natural disaster;
- d) targeted cyber attack.
- The effects of excluding liability shall be limited to the duration of the obstacle to which these effects are connected, unless, due to such circumstances, any defects of the System or complete destruction of technical equipment, or software necessary for System operation, occur.
- 6.2. Legal defects
- 6.2.1. If the Client’s exercise of the rights under the Contract is prevented or hampered by the rights of any third party to the System being exercised, or if the Client ascertains that any third party exercises its rights to the System or any third party considers use of the System by the Client as a breach of its rights,
- a) the Client shall immediately inform the Provider of such a fact;
- b) the Client shall allow the Provider to take any and all steps to settle the matter;
- c) the Client shall cooperate with the Provider and provide the Provider with assistance to reach an agreement as soon as possible with the third party and to protect the rights of the Provider and the Client;
- d) the Client shall adhere to the Provider’s instructions provided to the Client in order to protect the rights of the Client and/or the Provider.
- 6.2.2. If it is revealed that on the handover date the Software was burdened with the right of any third party, the Provider, on its behalf, shall settle these claims at its own expense. The Client shall notify the Provider of any third party claims arising from legal defects without undue delay; in the event of litigation, the Client shall be responsible for proper and conscientious litigation, taking all necessary steps to ensure that its rights are not challenged due to the lack of procedural defence. In the event of litigation, the Provider undertakes to provide all necessary assistance upon the Client’s request to do so.
- 6.2.3. Without the express consent of the Provider, the Client may neither enter into any settlement agreement, deeds of arrangement or any other similar agreement relating to the third party claims arising from legal defects, nor take any steps by which it would recognize such third party claims. The Provider undertakes to provide the necessary assistance during the negotiation of any agreements or settlements.
- 6.3. Guarantees
- 6.3.1. Unless otherwise agreed in the Contract or stated in the GBTC, the Provider shall not be obliged to provide any other guarantees in relation to the System.
- 6.3.2. The Provider shall neither be liable for the usefulness, profitability and suitability of the use of the System for a particular purpose of the Client, nor for the fulfilment of the Client’s expectations relating to the System.
- 6.3.3. The Provider shall not be liable for the error-free character, continuous operation of the System or its adaptability to different hardware and software than specified in the documentation.
- 6.3.4. The Provider shall not be liable:
- a) for any defect in the System due to changes in the hardware or operating software by any person other than the Provider;
- b) for any defect of the System resulting from the fact that the Client has ignored the Provider’s instructions provided in connection with the System.
7. Provision of Software maintenance
- 7.1. Operation time for reporting requirements and provision of support
- 7.1.1. The operation time for reporting requirements within this service shall be H24/7.
- 7.2. Defect categories
- 7.2.1. In any service requirement, the Client shall specify its priority within the limits under the Defect Severity Classification below (priority – description):
- Critical defect – it prevents the processing or completion of a critical corporate process
- It causes errors in the data in multiple parts of the Software or errors that significantly affect the functioning of other Software components
- It causes errors in the data which cannot be repaired by the user
- There is no alternative solution (“workaround”)
- Less severe defect – limitation of the applicability of a certain feature or an error that does not affect other parts of the Software; these are errors that:
- Disrupt, but do not prevent the use of the Software,
- Nlock the completion of certain tasks that are not time-critical,
- Cause partial error or discomfort,
- Cause minor problems or discomfort of the operator
- Cause other defects.
- 7.2.2. Having determined the defect, the Provider may reclassify the notified degree of the defect and justify the reclassification to the Client.
- 7.2.3. In specific cases, the Parties to the Contract may agree via email or in writing on the time priority of removing defects and on other periods of temporary or complete removal of defects than those set out in the Contract and in the GBTC.
- 7.3. Time limits for removal of defects
- 7.3.1. The Provider undertakes to remove critical defects using the form of temporary or complete removal within the agreed time limits, but it shall begin to remove critical defects without undue delay after proper notification.
- 7.3.2. Minor defects shall be removed within the next upgrade of the System.
- 7.3.3. The period of time for the removal of defects shall not include the time that is required to remove defects of hardware or software cooperating with the Software (operating systems, etc.), connectivity defects or due to a delay by the Client in providing assistance.
- 7.4. Terms of maintenance provision, assistance
- 7.4.1. The Client undertakes to provide the necessary assistance requested by the Provider, as well as information and documents necessary for maintenance provision in mutually agreed time limits, unless the time limits of performance are agreed in the Contract and the GBTC.
- 7.4.2. If necessary, the Client shall provide assistance through its authorized person (administrator or any other authorized person), e.g. in providing diagnostic information to the Provider, in the event of temporary restriction of user access to the Software, during installation and verification of repairs, etc.
- 7.4.3. When reporting defects or any other requirements, the Client shall state all the circumstances known to it, true and unbiased information and other data relevant to the successful and timely provision of maintenance.
8. Termination of the Contract
- 8.1. The Contract shall be terminated in the following cases:
- a) written agreement between the Parties to the Contract;
- b) expiration of the period for which the licence is granted;
- c) withdrawal from the Contract, in cases of a material breach of the obligations agreed in the Contract.
- 8.2. Either Party to the Contract may withdraw from the Contract due to the material breach of an obligation, particularly:
- a) due to the Client’s delay with the payment of the price or any part thereof longer than 30 days.
- b) due to the Provider’s delay with handover of the System or provision of access to Software Services longer than 60 days.
- c) due to the Client’s failure to provide necessary assistance if this makes it impossible to meet the obligations of the Provider under the Contract and if the Provider has notified the Client of such a fact in writing and provided the Client with a reasonable time limit to remedy the defective condition.
- 8.3. The Provider may withdraw from the Contract if the Client uses the System contrary to the Contract or breaches the licence conditions specified in the Contract.
- 8.4. If the Client withdraws from the Contract due to a material breach of the Contract, the Provider shall be entitled to reimbursement of a part of the price corresponding to the range of partial implementation of activities under the Contract, as well as to reimbursement of the bindingly ordered hardware and software, according to the prices specified in the Contract.
- 8.5. The Provider shall have the right to reimbursement of a part of the price also in the event of termination of the Contract by agreement or, as the case may be, in the event of unjustified withdrawal from the Contract by the Client.
- 8.6. The withdrawal notice must be made in writing and delivered to the other Party to the Contract, and it shall become effective on the date of its delivery or, as the case may be, on a later date specified in the written withdrawal notice.
- 8.7. The Provider may terminate the Contract, in whole or in part, with immediate effect, by recorded delivery or personal delivery – without affecting any rights to compensation for any damage – if one or more of the following situations occur:
- a) the Client has been declared bankrupt, or a motion to initiate insolvency proceedings has been filed in respect of the Client, or such a motion has been filed by the Client itself.
- b) the Client is in liquidation or ceased to carry on business activity more than 2 months ago.
- 8.8. If insolvency proceedings are initiated against one party, the other party has the right to withdraw from the contract.
- 8.9. The Parties to the Contract shall complete property settlement within 30 days from the date of termination of the Contract. The Parties to the Contract may agree otherwise in respect of the mutual property settlement.
9. Final provisions
- 9.1. The GBTC shall always be valid and effective until the effective date of the new GBTC replacing the current GBTC.
- 9.2. The Provider may unilaterally change these GBTC. The Provider shall publish, without undue delay, a new version of the GBTC on its website or, as the case may be, send a new version or information about the version to the Client’s email address. The Client shall be obliged to become acquainted with the amended GBTC. If the Client continues to accept the services or other performance provided by the Provider, the amended GBTC shall become binding on the Client from the moment and effective from the date when the Client accepted the service or the performance. The Client may reject such change to the business terms and conditions by giving notice with a 2-month notice period, which shall begin upon delivery of the notice. If the other Party to the Contract fails to give notice within 15 days from the date of notification of the change to these business terms and conditions, it shall be deemed that the other Party to the Contract agrees to the change of the business terms and conditions.