Phonexia Terms and Conditions
These terms and conditions (“Terms and Conditions”) govern the rights and obligations under which Phonexia s.r.o., with its registered office at Chaloupkova 3002/1a, 61200 Brno, ID No.: 27680258, VAT: CZ27680258, File No. C 51524, kept by the Regional Court in Brno (“Phonexia”) provides Software and related services (“Software”) to the partners (“Partner”) or customers as end users (“Customer”) (together as “Partner/Customer”). The Partner/Customer enters into a binding agreement (“Agreement”) with Phonexia by accepting a valid purchase quote from Phonexia (“Quote”). The Quote is non-exclusive and Phonexia is under no obligation to supply additional Software to the Customer through the Partner. Each Quote must be accepted within 3 months upon receiving unless otherwise stated expressly in the Quote. After this period, the Agreement may only be concluded with the written consent of Phonexia. The Quote and these Terms and Conditions constitute the entire Agreement. Any new terms or conditions proposed by the Partner or Customer shall not be binding upon Phonexia until they have been agreed upon in writing by Phonexia.
- License. Phonexia, subject to the terms and conditions of this Agreement, hereby grants a nonexclusive, nontransferable right and license for the term of 1 year since the execution of the Agreement, unless otherwise stated in the Quote, to:
- the Partner to
- embed or otherwise incorporate the Software into Partner´s products and/or solutions for its further distribution; and/or
- promote, resell and support the Software to Partner´s resellers and end users as per the terms of this Agreement
- the Customer to use the Software internally in accordance with its functional purpose according to the provided documentation.
- the Partner to
- End-User License Agreements. The Partner/Customer acknowledges that each end user of the Software will be required to accept Phonexia End User License Agreement which is available on Phonexia’s website (https://www.phonexia.com/end-user-license-agreement/).
- Delivery. Phonexia will provide the Partner/Customer with time-limited license. The license is extended after the invoiced License fee is credited on Phonexia´s bank account according to Article 6 of the Terms and Conditions.
- License Key. The Partner/Customer acknowledges that, in order to activate any copy of the Software, the Partner/Customer, reseller or end user must obtain a unique licensing file or number from Phonexia.
- Prices. All prices quoted are exclusive of applicable taxes, including but not limited to sales tax, value-added tax, and any other taxes or duties imposed by any governmental authority.
- Payment. The Partner/Customer shall pay License and other applicable fees by wire transfer per invoices issued by Phonexia by e-mail, or registered mail. Invoices are due and payable within 14 days after receipt of the invoice, unless otherwise specified in the Quote. Phonexia may first issue a pro forma invoice and once this is paid a tax invoice will be sent to the Partner/Customer.
- Taxes. All payments under this Agreement shall be free and clear of all withholdings or deductions of any nature, if not agreed between Parties. Partner/Customer shall pay by way of supplemental payment an additional amount, such that after the deduction of all amounts required to be withheld or deducted from the payment and the supplemental payment, the net amount received by Phonexia shall be equal to the amount that Phonexia would have received if such withholding or deduction had not been required.
Only withholding taxes which are in the line with concluded double tax treaty of residence country of Partner/Customer and Phonexia may be withheld from the payments under this Agreement. Partner/Customer shall secure the collection of the tax and provide Phonexia with a withholding tax certificate of the local tax authority.
Partner with registered office in any country of EU is obliged to provide Phonexia with the valid VAT ID number. Only in this case the price will be calculated without additional VAT. Phonexia is allowed to add VAT to Partner’s receipt or invoice if the provided VAT ID will not be valid.
- Reservation of rights and ownership. Phonexia reserves all intellectual and other rights not expressly granted to Partner/Customer in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. Phonexia or its suppliers own the title, copyright, and other intellectual property rights related to the Software. The Software is licensed, not sold.
- Protection of Phonexia´s intellectual property rights. Partner/Customer shall implement and maintain reasonable security measures to safeguard all Software materials, and all copies of Software materials made by or on behalf of Partner/Customer, from access or use by any unauthorized person. The Partner/Customer shall not alter, obscure, remove, interfere with or add to any of the trademarks, trade names, logos, or notices used on or contained in the Software materials at the time they are delivered to the Partner/Customer and shall ensure that all those trademarks, trade names, logos, and notices are reproduced on all copies of the Software materials made by or on behalf of the Partner/Customer.
- Limitations on reverse engineering, decompilation, and disassembly. Neither the Partner/Customer nor any person affiliated with it may reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by Phonexia or applicable law.
- Export restrictions. Due to the fact that the Software is subject to local EU export jurisdiction, Partner/Customer agrees to comply with all applicable international and national laws that apply to the Software, including the EU export administration regulations, as well as end-user, end-use, and destination restrictions issued by EU. Phonexia shall not be liable for any breach of such laws by Partner/Customer or any person affiliated with it and Partner/Customer shall indemnify Phonexia for any expenses associated herewith. The Partner must obtain express written permission from Phonexia to resell a license to the Software to a specific country outside the EU.
- Ethical code. Partner/Customer acknowledges that Phonexia follows the ethical values stipulated in Phonexia Ethical Code and undertakes to make best effort to be compliant with the then current version of Phonexia Ethical Code which is available on Phonexia website or may be provided by Phonexia upon request.
- Public offices. Partner/Customer hereby confirms, acknowledges and agrees that its owners, directors, officers, employees or agents have not, and will not, make or promise to make payments of money or anything of value, directly or indirectly, to any government or public international organization officials, political parties, or candidates for political office, for the purpose of obtaining or retaining business or securing any improper advantage, or to any other person or entity if such payment would violate applicable laws or treaties.
- Confidentiality. All information (except for public information) disclosed by one Party to the other Party under this Agreement is considered confidential. Such information may be used only for performance under this Agreement and may not be copied or reproduced unless such copying or reproduction is a requirement for using such information. Any and all confidential information remains the property of the disclosing party with receiving party being obligated to return to disclosing party all copies and reproductions no later than the date of termination of this Agreement. Receiving party is obligated to ensure that all confidential information is secure with all persons to whom such information will have been disclosed or otherwise communicated up to the time such information becomes public.
- Warranty by Phonexia. Phonexia represents and warrants to Partner/Customer that Phonexia has sufficient rights in and to the Software to grant the rights contemplated by this Agreement without obtaining the consent of any other person.
- Warranty by Partner/Customer. Partner/Customer represents and warrants to Phonexia that Partner/Customer will make no representation, warranty, claim or promise to any party relating to the Software except as specified in this Agreement or as previously being authorized by Phonexia in writing. All such representations and warranties made by Partner/Customer without proper authorization of Phonexia shall be considered as a sole responsibility of Partner/Customer.
- DISCLAIMER OF WARRANTIES. Other than as set forth in this article above, Phonexia and its suppliers provide the Software including support services (if any) “AS IS”, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, and of lack of viruses, all with regard to the Software, and the provision of or failure to provide support or other services, information, Software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
- EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PHONEXIA OR ITS SUPPLIERS BE LIABLE TO PARTNER/CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF PHONEXIA OR ANY SUPPLIER, AND EVEN IF PHONEXIA OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that Partner/Customer might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Phonexia and any of its suppliers under any provision of this agreement and the exclusive remedy will not exceed the fees received by Phonexia from Partner/Customer for the contract and order during the last rolling year. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
- THIRD PARTIES. Partner shall ensure that sections 17 to 19 apply also to third parties to whom the Partner provides the Software.
- Term. The Agreement is effective for the duration of the license specified in Art. 1 of this Terms and conditions.
- Termination for Cause. Either party may terminate this Agreement, effective immediately, for cause if the other party breaches any of its obligations under this Agreement and fails to remedy such breach within fifteen (15) days after the first party gives written notice thereof.
- Choice of Law. This Agreement shall be governed by, and construed in accordance with, the Act. No. 89/2012 Coll., Civil Code, and other applicable laws of the Czech Republic excluding conflicts of laws principles. Should any dispute arising under this Agreement fail to be resolved amicably, such dispute will be adjudicated by the Czech court which territorial jurisdiction shall be determined according to the address of Phonexia’s registered office.