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TERMS OF SALES

 

These Terms of Sale (these “ToS”), together with the Hardware Terms and the Service Terms incorporated herein by reference, apply to sale and purchase and use of Solution(s) via E-shop and may be supplemented by schedules and other supporting documentation applicable
to one or more Solutions from time to time (each, a “Schedule” and jointly, the “Schedules”), all
of which shall form an integral part of these ToS.

Personal data is collected, used, transferred and retained in accordance with our Privacy Statement.

Article 1 - Definitions

1.1   Business Day: any day identified as such for each operating center in OMNI Central.

1.2  Company: Person member of the Parent Group from which Customer purchased a Solution or Product on E-shop.

1.3  Dispute(s): any disputes, claims or controversies arising out of or in connection with these ToS or any Documentation or any Order.

1.4  Documentation: any and all documentation related to a Solution or Product or any part thereof, including these ToS, the Hardware Terms, the Service Terms and any Schedules.

1.5  E-shop: the online shop available at www.ysoft.com.

1.6  Effective Day: The date as of which the ToS apply to the purchase or use by Customer of a Solution or Product, which is (i) the date on which Customer purchases a Solution or Product via E-shop; or (ii) where Documentation expressly sets forth otherwise and specifies a later date as it relates to a Solution or Product, such later date.

1.7  Force Majeure: a delay in or failure of performance caused by an event or events reasonably beyond Company’s control and without the fault of Company, including but not limited to state of emergency due to health risks or for other reasons declared in the jurisdiction of Company’s organization or its operating centre(s) location or state of emergency declared for any reason by multiple jurisdictions that may reasonably be anticipated to impact performance (including deliveries of Products to Customer) by Company, other governmental restrictions, embargoes, strikes, riots, insurrection, wars, or other military action, acts of terrorism, civil disorders, rebellion, fires, floods and other environmental catastrophes, widespread failures of the Internet or communication systems, vandalism, or sabotage.

1.8  
Group: In relation to a Person, that Person and every direct or indirect subsidiary or holding company of such Person or a subsidiary or holding company of any such subsidiary or holding company from time to time.

1.9  
HW: Hardware, including devices, terminals, card readers and other equipment, offered as a component of, or in connection with, a Solution offered by Company.

1.10 
Hardware Terms: the then-current YSoft OMNI Series Hardware Terms of Company, available here.

1.11  Helpdesk: a Service focused on providing technical consultation on the setup, operation and maintenance of SW in response to Service requests and Incident (as such term is defined in the Service Terms) reports.

1.12  I
nsolvency Event: means as to any Person, any of the following in any jurisdiction to which the Person is subject: (a) such Person is unable or admits inability to pay its debts as they fall due; (b) the value of the assets of such Person is less than its liabilities (taking into account contingent and prospective liabilities); (c) such Person is deemed, within the meaning of section 123 of the UK Insolvency Act 1986 (as amended) or otherwise for the purposes of any applicable law, to be unable to pay its debts or insolvent or bankrupt, or appears to be unable or of having no reasonable prospect of being able to pay its debts; (d) such Person suspends making payments of its debts generally or any class of its debts or announces an intention to do so; (e) by reason of actual or anticipated financial difficulties, such Person commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; (f) a moratorium is declared in respect of any indebtedness of such Person; (g) any corporate action, legal proceedings or other procedure or step is taken by any person in relation to or with a view to: (i) the suspension of payments, a moratorium of any indebtedness, winding-up, bankruptcy, dissolution, administration (whether out of court or otherwise) or reorganisation (whether by way of voluntary arrangement, scheme of arrangement or otherwise) of that Person; (ii) a composition, assignment or arrangement (including, without limitation, any company voluntary arrangement) with any creditor of such Person; (iii) the appointment of a provisional liquidator, liquidator, receiver, administrator, administrative receiver, compulsory manager, trustee in bankruptcy, supervisor or judicial custodian or other similar officer (in each case, whether out of court or otherwise) in respect of such Person or any of its assets (other than a petition which the other party (acting reasonably) is satisfied is vexatious or frivolous, and which is being contested in good faith, and which is discharged within ten (10) days of being initiated); (iv) a meeting of such Person, its directors or its members or its creditors (but not a meeting of creditors to consider a vexatious or frivolous claim) (or any of them) being convened for the purposes of considering any resolution for, or to petition for, its winding up, or to apply for, or to file documents with a court for, its administration (whether out of court or otherwise) or dissolution or any such resolution is passed; (v) the members or directors or other officers of such Person requesting the appointment of or giving notice of their intention to appoint or taking any step with a view to appointing a provisional liquidator, liquidator, receiver, administrative receiver, administrator (whether out of court or otherwise), compulsory manager, trustee in bankruptcy, supervisor or judicial custodian or other similar officer; (vi) is the subject of a notice to strike off the register at Companies House; or (vii) any other analogous step or procedure is taken in any jurisdiction.

1.13  
Intellectual Property: any proprietary patent, industrial design, copyright, trade secret, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, domain name, moral rights or other enforceable intellectual property rights (including rights in proprietary data bases and privacy rights), each as recognized under any applicable law.

1.14  License: a worldwide, royalty-free, non‐exclusive right to use, subject to the terms and conditions set forth in Documentation applicable to the relevant Product, the Intellectual Property included in the Product purchased by Customer hereunder, as applicable, or created as a result of or in connection with Services provided by Company to Customer or to an end user designated and authorized by Customer to benefit from Services in accordance with the Service Terms or other Documentation, where applicable.

1.15  OMNI Central: a central Company´s website for OMNI products, available here.

1.16  Order: an order for a Solution(s) or Product(s) submitted by Customer hereunder.

1.17  Parent: Y Soft Corporation, a.s., a joint-stock company organised under the laws of the Czech Republic, with its registered office at Technicka 2948/13, 61600 Brno, Czech Republic, ID No.: 26197740, VAT: CZ26197740, registered in the Commercial Register maintained by the Regional Court in Brno in Czech Republic, under File No. B 8045.

1.18  Person: any sole proprietorship, corporation, joint stock company, business trust, firm, joint venture, partnership, unincorporated organisation, association, enterprise, limited liability company, limited liability partnership, public benefit corporation, trust or other legal entity or organisation, or any government (whether federal, state, provincial, county, city, municipal or otherwise, including any instrumentality, division, agency, body, political subdivision or department thereof).

1.19  Privacy Statement: the privacy statement of Company regarding the processing of personal data, as such may
from time to time be amended or supplemented by Company,
with the current version available at https://www.ysoft.com/es/legal/privacy-statement.  

1.20 Product(s): SW and related Service(s) (if any).

1.21  Product Line: the line of Solutions identified by Company as YSoft OMNI Series, as such may be offered by Company from time to time.

1.22 Product List(s): the document(s) defining the scope and parameters of functionality, and other parameters as such relate to any individual components of Solution(s), as amended by Company from time to time.

1.23 Reseller Agreement: an agreement concluded by and between Company and Customer governing the terms on which Customer may offer and resell Solutions to Persons other than Customer and Company, including Persons that are Customer’s customers, partners, business affiliates and contacts.

1.24 Restricted Party: a subject (a) that is listed on any Sanctions List (whether designated by name or by any recognized reason); (b) that is domiciled in, registered as located or having its main place of business in, or is incorporated under the laws of, a country which is ubject to a Sanctions Law; (c) that is directly or indirectly owned or controlled by a person referred to in (a) and/or (b) above; or (d) with which Company is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions Law.

1.25 Sanctions Authority: The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union and any of its member states, Her Majesty’s Treasury, the United Kingdom, the United States of America, and any authority acting on behalf of any of them in connection with any Sanctions Law.

1.26 Sanctions Law: any economic or financial sanctions law and/or regulation, trade embargo, prohibition, restrictive measure, decision, executive orders or notices from any regulator implemented, adapted, imposed, administered, enacted and/or enforced by any Sanctions Authority.

1.27 Sanctions List: any list of persons published in connection with any Sanctions Law by or on behalf of any Sanctions Authority each as amended, supplemented or substituted from time to time.

1.28 Services: the services, including support and maintenance services, deployment, implementation and consulting services, offered in connection with the Product Line by Company from time to time.

1.29 Service Terms: the then-current OMNI Service Terms of Company, available here.

1.30 Solution: a Product that may be, where applicable, complemented by HW.

1.31 SW: Collectively, the proprietary software of Company and the software of other Persons used by Company that Company is authorized to license to third parties in connection with a Solution.


1.32 Term: the term for which Customer obtained a subscription for a Solution from Company.
 

ARTicle 2 -  orders; TERMS AND CONDITIONS

2.1   Orders may be submitted electronically, via (i) E-shop; or (ii) email, at the email address of orders@ysoft.com; or (iii) OMNI Central. Company reserves the right to modify the manner in which Orders may be submitted, upon reasonable prior notice via OMNI Central or an update of these ToS or upon reasonable prior written notice to Customer. When submitted, all Orders are considered irrevocable.

1.2   Where Order is for or includes delivery of HW, such HW will be shipped to Customer no later than thirty (30) calendar days from Order receipt, unless expressly stipulated otherwise in Documentation or by Company in Order confirmation; provided, that it shall always be shipped within the period for shipment stipulated in Documentation, subject to Force Majeure.

1.3    Delivery and warranty and RMA conditions for HW are set out in the Hardware Terms.

1.4    Where HW is delivered to Customer with a delay of more than thirty (30) calendar days, contractual penalty in the amount of 10% of the price paid by Customer for such HW applies. Company’s total liability for damages of Customer resulting from or related to this delay under these ToS or any Documentation shall be limited to the amount of the penalty set forth in the previous sentence of this Section 2.4.

1.5    Delivery of Products is subject to the Service Terms.

1.6    As it relates to any Product or Solution, Customer shall comply with all law applicable to the purchase, use and performance of its obligations under these ToS by Customer, including all applicable export control and economic sanctions laws.

1.7    Company reserves the right to refuse to provide Services and suspend Customer’s License and access to any SW purchased by Customer in the event that Customer is in breach of Sections 7.1 (e) or 7.1(f) hereof.

 

Article 3 - Cancellation and Refund policy

3.1     Unless expressly set forth otherwise in Documentation, all sales are final.

3.2    Unless expressly provided otherwise, no refunds will be provided for any subscriptions paid by Customer.

3.3    Hardware Terms include information on, and the conditions of, warranty and RMA process for return and repair of HW.

 

Article 4 - THIRD-PARTY ACCESS and USE

4.1    Customer shall not, and shall not permit any employee of Customer or other person to sublicense, lease, rent, loan, distribute, or otherwise transfer any Product or Solution, including, associated user interfaces, and any related technology or services that Company makes available to Customer via the OMNI Central or otherwise, and all updates and upgrades thereto, if any, to any other person, except as expressly allowed by Company in Documentation or as agreed in a Reseller Agreement, as applicable.

4.2   Customer shall promptly notify Company if it becomes aware that a Product or Solution is used contrary to these ToS or any Reseller Agreement or in conflict with Company’s legitimate interests.

 

Article 5 - Taxes; Late payment

5.1    All amounts paid hereunder are exclusive of taxes (including VAT), unless expressly agreed otherwise.  Customer shall be responsible for the payment of all taxes, including any state, local, and foreign sales, use, excise, utility, gross receipts, value added or other tax (including VAT) or stamp duty imposed by any authority related to these ToS, purchase of HW or use of a Product or Solution, or the provision by Company of any related services, except for those taxes relating to the income of Company arising from the transactions contemplated herein, which taxes will be the obligation of Company receiving such income.

5.1    Amounts due and payable by a party hereunder overdue by more than thirty (30) days shall be subject to late payment interest fees in the amount of 0.05% per each day of delay with payment of the outstanding amount. Payment of late interest fees by Customer hereunder shall not impact the right of Company to claim damages incurred by Company in connection with any late payment of any amounts due and payable by Customer hereunder.

 

Article 6 - intellectual property

6.1    As it relates to each Product or Solution purchased by Customer hereunder and for purposes of such Product and Solution only, Company grants Customer License as of the Effective Date for the Term, unless expressly stipulated otherwise in Documentation or agreed otherwise by the parties in writing. All rights not expressly granted to Customer are reserved to Company.

6.2    Each License expires at the end of the Term, subject to earlier termination by Company in accordance with Sections 6.5 and 6.7 hereof. Following any termination or expiration of a License, Customer is obliged to immediately cease using the Intellectual Property to which such License relates.

6.3    Where available and subject to Section 6.4 hereof, Customer is authorized to update its SW in accordance with Company’s instructions for such update. Following such update, the License shall apply to the Intellectual Property in the relevant Product as updated, subject to the terms and conditions in Documentation, or any additional Documentation related to such SW update, as applicable.

6.4    New version of SW may include Intellectual Property of a third party or third parties and/or require terms of use other than as set forth in Documentation. In the event that Customer wishes to update its SW to such new version of SW, Company may request that Customer complies with such other terms of use, and confirms its acceptance of such other terms of use
in additional Documentation pertaining to such new version of SW.

6.5   Company shall have no obligation to monitor or exert editorial control over any data provided by any third party, including Customer in Helpdesk, OMNI Central or otherwise. If Company becomes aware that any daya or use of Heldesk or OMNI Central or other systems or solutions of Company is or is likely to (i) violate any applicable law, (ii) infringe on the Intellectual Property rights of any person, and/or (iii) contain obscence, offensive, or unlawful materials, or any combination of the above, Company shall have the right, but not the obligation, to (a) remove the violative data and/or (b) suspend or terminate the relevant Person's right to use the Helpdesk, OMNI Central or other impacted systems or solutions.

6.6    Unless expressly set forth otherwise herein or elsewhere in Documentation or in Reseller Agreement, each License is granted solely for Customer’s use. Customer may not, either for or without consideration, or for reciprocal service, assign the rights and obligations arising from any License, or sub‐license, or in any other manner transfer the License or the Intellectual Property in a Product to which such License relates, or use the same as collateral or as security with respect to Customer's or any other person's obligations.

6.7    A Solution may contain, and Company shall be authorized to utilize in the event of default of Customer or where Company is experessly authorized to suspend or terminate Customer's use of the Solution hereunder, a computer code which when activated will automatically limit the functionality or disable such Solution or a part thereof.

6.8   Customer shall not, and shall not permit any employee of Customer or other erson to: (a) modify, adapt, alter or translate any Product or Solution, except as expressly allowed by Company, where applicable; or (b) reverse enginere, decompile disassemble, or otherwise derive or detremine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of any Product or Solution. Where any restriction as set forth in the Section 6.8 is not permitted under applicable law, Customer shall be restricted from any of the aforesaid (in the previous sentence of this Section 6.8) to the maximum extent permitted under applicable law.

6.9    Customer shall promptly notify Company if it becomes aware of an infringement on Company's Intellectual Property rights associated with a Product or Solution, and in the event that Company pursues any claim(s) in relation to any such infringement, and to the extent Company reasonably requires such assistance, shall provide Company with adequate assistance in connection therewith.

6.10  Company retains all right, title, and interest in and to any and all Intellectual Property associated with Solutions or resulting from Services, any and all derivative works thereof, and in all media, and any goodwill accruing from the use thereof.

6.11 Customer may not use any trademarks or trade names of Company in any form or as part of any domain, except where the manner and form of such use is consistent with these ToS or with express prior written consent of Company.

 

Article 7 - CUSTOMER Representations, WARRANTIES and covenants

7.1   Customer represents, warrants and covenants to Company, at the Effective Date and as of the effective date of any Schedule and as of the date that Customer submits an Order, that:

a. Customer is duly organized and validly existing and is in good standing under the laws of the jurisdiction of its organisation;
b. Customer has the requisite power and authority to execute, deliver and perform these ToS;
c. The execution, delivery and performance by Customer of these ToS, does not violate any provision of Customer’s organisational documents;
d. As it relates to the performance hereof and use of the Solution, Customer is and will continue to be in compliance with any applicable laws;
e. To the best of Customer’s knowledge and belief after having made all due and careful enquiries, Customer, each member of the Customer’s Group and each of their respective directors, officers, employees, agents or representatives is and has been in compliance with all applicable Sanctions Law; and
f. To the best of Customer´s knowledge and belief after having made due and careful enquiries, neither Customer, any member of its Group nor any of their respective directors, officers, employees, agents or representatives: (i) is a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party; or (ii) is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to any Sanctions Law by any Sanctions Authority.

7.2   Customer will supply to Company promptly upon becoming aware of them, details of any inquiry, claim, action, suit, proceeding or investigation brought pursuant to any Sanctions Law by any Sanctions Authority against it, any member of Customer’s corporate group or any of their respective directors, officers, employees, agents or representatives, as well as any information on what steps are being taken with regards to answering or opposing such actions.

7.3   At the Effective Date and as of the date that Customer submits any Order for customization hereunder, Customer represents and warrants that it possesses sufficient rights, permissions and consents to allow Company to use, for the purposes of and as required for Company to fulfil its obligations hereunder and under any Documentation and Order:

a. Intellectual Property, technology or data that Customer or any member of its Group at any time provide to Company, and
b. Any confidential information of any person other than Customer, Intellectual Property, hardware other than HW, software other than SW, Intellectual Property or services other than Services that Customer or any member of its Group requests Company uses with or in connection with, installs, or integrates as part of a Company’s Solution and/or it’s customization for Customer.
 

ARTicle 8 -  COMPANY REPRESENTATIONS AND WARRANTIES

8.1    Company represents, warrants and covenants to Customer, at the Effective Date and as of the date that any Order is accepted by Company, that:

(i)                  Company is duly organized and validly existing and is in good standing under the laws of the jurisdiction of its organization;

(ii)                Company has the requisite power and authority to execute, deliver and perform these ToS;

(iii)               The execution, delivery and performance by Company of these ToS, does not violate any provision of Company’s organizational documents;

(iv)               As it relates to the performance hereof and to the Solution, Company is and will continue to be in compliance with any applicable laws.

 

Article 9 - liability

9.1    Consequential Damages. Except for a breach of Section 10 or misuse by Customer of Company’s Intellectual Property, in no event shall either party be liable to the other party or to any other person for any indirect loss, including loss of time, money or goodwill, incidental, special, exemplary, consequential or punitive damages of any kind under any legal theory or cause of action, in each case based on either party’s use, inability to use, operate or modify any Company’s Solution or any part thereof. For the avoidance of doubt, indirect loss includes loss of use, lost business, lost revenue, lost profits, lost data, and/or lost goodwill even if the party knew or should have known of such damage.

9.2   Limitation of Liability. Company’s total liability for proven direct damages resulting from any cause of action (or a related series of actions) arising out of these ToS, any Schedules, or any Documentation or Order and/or the Services shall be limited to the amount of subscription fees received by Company arising from the affected Schedule(s) or Orders during the three (3) month period immediately preceding the date on which the cause(s) of action accrued. 

9.3   Notwithstanding the foregoing, the limitations in Section 9.2 (nor those in similar sections of any Schedules, where applicable) are not applicable to damages resulting from (i) a party’s intentional tortious acts, fraud or gross negligence, (ii) death or personal injury resulting from the negligence of a party, its employees, agents or sub-contractors, or (iii) Customer’s obligation to pay any amounts payable by Customer that are established under these ToS, the Service Terms, the Hardware Terms, any Schedule or any other Documentation.  Each party acknowledges that the limitations of liability in this Section 9.3 reflect the allocation of risk set forth herein and that neither party would agree to these ToS without these limitations on its liability.

9.4   Statute of Limitations. Except as stated in this Section 9.4, all claims must be made within the relevant statute of limitations as stipulated by applicable law. Where applicable law allows the parties to restrict this period or does not provide for a statute of limitations for certain claims that may arise hereunder or in connection with, such claims shall be raised within 12 months of the date on which the cause(s) of action accrued.

9.5   Disclaimer. Except as expressly set forth herein and in any Schedule, no warranties or conditions, whether express, implied or statutory, including the implied warranties of satisfactory quality and fitness for a particular purpose and the ability to achieve any particular result, are made by Company with respect to any Product, Solution, or any Services provided by Company hereunder, and such Products, Solutions, and Services are provided on an “AS-IS, WHERE-IS and AS AVAILABLE” basis.  Company expressly disclaims liability and specifically denies any responsibility for the selection and suitability of HW, SW, or Service(s) chosen by Customer for the purposes intended by Customer.
 

Article 10 - Confidentiality

10.1    Confidentiality.  Each party acknowledges that (i) in connection with Solution(s) and in connection with transactions contemplated hereunder, each party may receive or have access to other proprietary or confidential information disclosed by a disclosing party and reasonably understood by a receiving party to be of a confidential and proprietary nature, and (ii) the OMNI Central incorporates confidential and proprietary information developed or acquired by Company (collectively, (i) and (ii), the “Information”).  The receiving party shall use the disclosing party’s Information solely to perform such receiving party’s obligations and exercise its rights under or in relation to these ToS, any applicable Schedule, or any Documentation.  The receiving party shall take precautions necessary to safeguard the confidentiality of the disclosing party’s Information, including (i) those taken by the receiving party to protect its own confidential information of a similar nature (but in no case shall the precautions taken be less than those reasonable in light of the nature of the Information disclosed) and (ii) those that the disclosing party may reasonably request from time to time.  Upon demand by either party upon completion by a party of its obligations hereunder, the other party will destroy Information disclosed to it hereunder. Notwithstanding the foregoing, no provision of this Section 10 shall require the destruction by the receiving party of any files: (i) retained for audit or record retention purposes; or (ii) computer records or electronic files containing Information that have been created pursuant to automatic archiving and back up procedures, provided that such Information so retained is kept confidential and used solely in accordance with the provisions set out in this Section 10.

10.2    Unauthorized Use or Disclosure.  Each party may only disclose Information to its affiliates, and the directors, officers, and employees of such party and its affiliates (collectively, “Authorized Persons”): (i) who have a bona fide need to know for the purposes of these ToS, (ii) who have executed a written agreement (or are otherwise bound by written agreement or equivalent professional ethical obligations) restricting use and disclosure of such Information to no less an extent as that required of the parties under these ToS, and (iii) so long as the receiving party remains liable for any unauthorized use or disclosure of the disclosing party’s Information by any such Authorized Person.  Except as set forth herein, the parties agree not to disclose to any third Person, other than with consent of the other party, any Information which may come into its possession or knowledge in connection with these ToS or the performance thereof, including, information relating to the parties’ businesses.  The parties acknowledge that any unauthorized use or disclosure of any Information by the receiving party may cause irreparable damage to the disclosing party, the remedies at law for such a breach may be inadequate, and that the disclosing party shall be entitled to seek injunctive and other equitable or legal relief to prevent or compensate for such unauthorized use or disclosure, in addition to any other remedies available.  This Section 10 shall survive the expiration or termination of the License for a period of five (5) years, except that the obligations of this Section 10 will remain in effect with respect to Information that qualifies as a trade secret for as long as such Information constitutes a trade secret under applicable law.

10.3  Limitation.  The receiving party shall have no obligation to safeguard the confidentiality of a disclosing party’s Information if (i) such Information is known through lawful means by the receiving party prior to receipt from the disclosing party as evidenced by the written records of the receiving party, (ii) such Information is lawfully obtained by the receiving party from a Person without restriction, (iii) such Information becomes available to the public through no act or omission of the receiving party, (iv) such Information is independently developed by the receiving party without access to, reference to, or knowledge of the Information as evidenced by the written records of the receiving party, or (v) the receiving party is compelled to disclose such Information pursuant to legal process, provided the receiving party promptly notifies the disclosing party of the service of such legal process to the extent permitted by applicable law and cooperates with the disclosing party in seeking confidential treatment thereof; provided, however, that after disclosure under 10(c)(v) above, the Information at issue shall continue to be protected under the terms of Section 10 for all other purposes.
 

Article 11 - Termination

11.1    Company shall have the right to restrict Customer’s access to or terminate License to the Product(s) and Solutions(s) purchased by Customer in the event of a material breach by Customer of a provision of these ToS or any Documentation applicable to any Product(s) and Solution(s) purchased by Customer and fails to cure such breach within fifteen (15) days following written notice by Company to Customer, specifying such breach and which License(s) are subject to termination.

11.2    Company shall have the right to terminate Customer’s License upon notice to Customer in the event that Customer is in delay with payment of the due and payable subscription fee(s) for longer than forty-five (45) days.

11.3    In addition to the rights of Company to restrict Customer’s access to Product(s) or Solution(s) or terminate License(s) as set forth in these ToS or elsewhere in Documentation, any License shall terminate immediately and automatically upon (i) the occurrence of an Insolvency Event with respect to either party, (ii) receipt of written notice from the non-breaching party for the intentional breach by the other party of Section 10 hereof. Any refunds of any subscription fee(s) or a pro-rata portion thereof paid by Customer for the use of Solution(s) and/or Product(s) for the unutilized Term covered by such subscription fee(s) shall be subject to the terms and conditions set forth in the relevant Documentation.
 

Article 12 - Changes

12.1    These ToS are effective as of the date on which they are published on OMNI Central and shall apply to the purchase and use by Customer of a Solution or Product as of the Effective Date.

12.2   Company reserves the right to modify these ToS from time to time, subject to a reasonable prior notice; provided that such modifications or amendments do not materially adversely affect the Services or rights of Customer hereunder, or materially alter the obligations of Company under these ToS or any Documentation. For the avoidance of doubt, all Orders and purchases made prior to any changes to these ToS taking effect shall be subject to the terms and conditions as set forth in these ToS at the time of such purchase or Order.

12.3  In the event that Company intends to introduce changes to these ToS that do not qualify as changes described in Section 12.2 hereof, Company will notify Customer of such changes forty-five (45) days in advance via publishing a notice to this effect in OMNI Central. Customer may, at its sole discretion, (i) continue to use Solution or Product purchased on E-shop pursuant to the ToS following the notified change; or (ii) at any time prior to such change taking effect, notify Company in writing that Customer does not require License and Services following the notified change. Where Customer does not notify Company as set forth in limb (ii) of this Section 12.3, the changes notified by Company to Customer pursuant to this Section 12.3 will take effect on the day that is forty-five days (45) from the date that Company published the notification of such changes on OMNI Central. Where Customer notifies Company as set forth in limb (ii) of this Section 12.3, Customer will cease to be authorized to use the purchased Solution(s) or Product(s) under License(s) required for the use of such Solution(s) and Product(s), and Services will cease to be provided to Customer, as of the effective date of the changes introduced by Company pursuant to this Section 12.3. Any refunds of any subscription fee(s) or a pro-rata portion thereof paid by Customer for the use of Solution(s) and/or Product(s) for the unutilized Term covered by such subscription fee(s) shall be subject to the terms and conditions set forth in the relevant Documentation.

12.4   Company reserves the right ot modify or discontinue a Product or Solution. In the event that Company, at its discretion, decides to discontinue a Product or Solution, Company will notify Customer to this effect sixty (60) days in advance via publishing a notice to tis effect in OMNI Central. Any refunds of any subscription fee(s) paid by Customer for the use of Solution(s) and/or Product(s) or a pro-rata pro-rata portion thereof for the unutilized Term covered by such subscription fee(s) shall be subject to the terms and conditions set forth in the relevant Documentation. Where Company discontinues a Product or Solution but offers a Product or Solution that is substantially same or superior, Company may include this information in the notice that a Product or Solution will be discontinued, and Customer may, at its discretion, request that Product(s) or Solution(s) purchased by Customer impacted by the decision of Company to discontinue a Product or Solution be replaced by such (same or superior) Product or Solution (the "Replacement") by Company. For the avoidance of doubt, where Customer requests the Replacement in accordance with the previoius sentence of this Section 12.4, such Replacement may be subject to a fee, and different terms and conditions or fees may apply to the use of the Product or Solution provided as part of the Replacement compared to the terms and conditions and fees that applied to the Product or Solution for which Customer requests the Replacement.

Article 13 - Final Provisions

13.1   These ToS shall be governed by and construed in accordance with the laws of England and Wales. Each party hereby consents to the exclusive jurisdiction of the courts of England and Wales, in any action, proceeding or Dispute relating in any way to these ToS, and agrees that any such proceeding shall be brought by it solely in any such court.  Each party irrevocably submits and consents to the exercise of subject matter jurisdiction and personal jurisdiction over such party by the courts located in England and Wales, and irrevocably waives all claims, objections and defences that it may have regarding such court’s subject matter or personal jurisdiction, venue or inconvenient forum. Service of process in relation to any legal action or proceedings arising out of or in connection with these ToS shall be carried out by overnight courier, in case of Customer to the address for notice determined in accordance with Section 13.9 hereof, and in case of Company to Technická 2948/13, Královo Pole, 61600 Brno, Czech Republic, to the attention of Chief Legal Officer. In case of Company such service shall be deemed completed on delivery to the Chief Legal Officer pursuant to the previous sentence. For the avoidance of doubt, service of process by email is not permitted. The U.N. Convention on Contracts for the International Sale of Goods does not apply.

13.2  Entire Agreement. These ToS with its Schedules and each Order constitute the entire agreement of the parties concerning the subject matter thereof. It may be modified solely by written agreement executed by both parties. No terms stipulated by Customer in an Order submitted hereunder are binding upon Company or shall be construed to supersede or modify or supplement these ToS, even where Company does not object to those terms when accepting the Order.

13.3  Force Majeure. Except for any obligations to pay hereunder, neither party shall be liable for any delay or failure in performance of its obligations due to Force Majeure. 

13.4  Assignment and Subcontracting. Neither party may assign these ToS, any Order, or any rights or obligations hereunder thereunder, or delegate performance of its obligations hereunder or thereunder, to another person without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any assignment not made in compliance with this Section 13.4 shall be null and void; provided, however, that:

a. Customer and Company may freely assign its obligations or rights hereunder to a Person acquiring all or substantially all of its assets or equity interests;

b. Company reserves the right to use subcontractors or other Persons not party hereto to fulfill its obligations hereunder or under any Documentation or Order; provided, that Company shall remain primarily liable for the performance of all of its obligations hereunder and any Documentation and Order by such subcontractors or other Persons; and
c. Customer and Company may freely assign, sell or otherwise transfer any receivables arising from or in connection with these ToS.

13.5  No Agency. It is expressly agreed that the performance by each party of its duties and obligations hereunder shall be that of an independent contractor and there shall not be any agency, fiduciary relationship, joint venture or partnership between the parties by reason of these ToS. None of the parties is authorized to issue any statements, representations or make commitments of any kind, or take any action, which would be binding on the other party, without the prior written consent of such other party.

13.6  Third-Party Rights. Except as may be set forth in Documentation other than these ToS, it is agreed for the purposes of the Contracts (Rights of Third Parties) Act 1999 that these ToS are not intended to, and do not, give to any person who is not Company or Customer any rights to enforce any provisions contained in these ToS except for any person to whom the benefit of these ToS is assigned or transferred in accordance with Section 13.4.  Except as may be set forth in Documentation other than these ToS, the consent of any person who is not Company or Customer is not required to terminate or modify these ToS at any time.

13.7  Waivers and Modifications. Neither these ToS nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the parties or, in the case of any waiver of any provision, by the party waiving the benefit of such provision.  No failure on the part of either party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other right or remedy or further exercise thereof or the exercise of any other right or remedy granted herein.

13.8  Severability. If any provision of these ToS or its Schedule(s) is or becomes invalid or unenforceable, such invalidity or unenforceability shall not affect (to the extent permitted by applicable law) the validity and enforceability of the remaining provisions of these ToS and/or Schedule(s). In such event, the parties agree to promptly replace the invalid or unenforceable provision with a valid and enforceable provision closest in meaning to the provision being replaced in order to achieve, within the extent permitted by applicable law, the same effect and outcome as intended by the parties by the substituted provision.Notices. All notices given by a party hereunder shall be in writing and, save as expressly set forth otherwise in this Section 13.9, delivered to the noticed party via email (with a copy sent by overnight courier), overnight courier, or hand delivery to the contact person and at the address or email address of the noticed party advised by such noticed party to the other party in writing, or to such other representative, address or email address as may be specified by written notice.  Letters of claim and notices given in connection with any action, proceeding or Dispute relating to these ToS or any applicable Schedule may be delivered by overnight courier only. Service of process of any legal action shall be carried out pursuant to Section 13.1.  All notices shall be deemed to have been given: (a) if personally delivered, upon actual delivery, (b) if sent by recognized overnight courier service, upon actual delivery to the notice address, or (c) if sent by email, upon recipient’s acknowledgment of receipt of such email communication. As of the latest date of revision of these ToS, the notification address, contact person and email address for Company is: Technická 2948/13, Královo Pole, 61600 Brno, Czech Republic, Attn: Chief Legal Officer, email: lnotice@ysoft.com.

Date of Revision:  27 February 2021
 
Y Soft Corporation, a.s.
Y Soft North America, Inc.
Y Soft Australia Pty Ltd
Y Soft France SARL
Y Soft Magyarország Kft.
Y Soft Israel Ltd.
Y Soft Japan Ltd.
Y Soft Asia Pacific Pte. Ltd.



 

YSOFT OMNI SERIES HARDWARE TERMS

As of the Effective Date, as it relates to Hardware delivery and warranty, Company and Customer agree to these YSoft OMNI Series Hardware Terms (“Hardware Terms”).

Article 1: Definitions

Capitalized terms used but not defined in these Hardware Terms shall have the meaning ascribed to them in the Agreement or the Terms of Sale, as applicable.

1.1   Agreement: an agreement concluded by and between a Person member of the Parent Group and Customer incorporating these Hardware Terms by reference, including each exhibit and schedule thereto, as such may be amended, supplemented, renewed, extended or otherwise modified from time to time.

1.2  Business Day:  any day identified as such for each operating centre in OMNI Central.

1.3  Business Hours: the hours of operation specified for each operating centre in OMNI Central.

1.4  Company: a Person member of the Parent Group
(i) which concluded Agreement with Customer; or
(ii) from which Customer purchased HW on E-shop.

1.5  Customer: (i) where the purchase and use of HW is governed by Terms of Sale, the Person purchasing such HW via E-shop; and (ii) where the purchase nd use of HW is governed by Agreement, the Person identified as such in the preamble of the Agreement, together with its successors and permitted assigns. 

1.6  Customization: is a desired modification to the standard type of the HW.

1.7  Defect: is a malfunction of HW that cannot be resolved by a maintenance or support and shall be resolved under Warranty.

1.8  Defective Part: is in relation to a certain HW a defective part or group of parts containing a defective item which forms the smallest replaceable unit in accordance with catalogue or instructions or current warranty guidelines of Company.

1.9  E-shop: the online shop available at www.ysoft.com.

1.10 Group: In relation to a Person, that Person and every direct or indirect subsidiary or holding company of such Person or a subsidiary or holding company of any such subsidiary or holding company from time to time.

1.11  HW: Hardware, including devices, terminals, card readers and other equipment, offered as a component of, or in connection with, a Solution offered by Company within the Product Line.

1.12  Order: an order for HW under these Hardware Terms.

1.13  Parent: Y Soft Corporation, a.s., a joint-stock company organized under the laws of the Czech Republic, with its registered office at Technicka 2948/13, 61600 Brno, Czech Republic, ID No.: 26197740, VAT: CZ26197740, registered in the Commercial Register maintained by the Regional Court in Brno in Czech Republic, under File No. B 8045.

1.14  Person: any sole proprietorship, corporation, joint stock company, business trust, firm, joint venture, partnership, unincorporated organisation, association, enterprise, limited liability company, limited liability partnership, public benefit corporation, trust or other legal entity or organisation, or any government (whether federal, state, provincial, county, city, municipal or otherwise, including any instrumentality, division, agency, body, political subdivision or department thereof).

1.15  Product: means SW and related Service(s) (if any).

1.16  Product Line: the line of Solution identified by Company as YSoft OMNI Series, as such may be offered by Company from time to time.

1.17  Regular Inspection: a regular inspection to be carried out in the scope and frequency as per the corresponding user manual.

1.18 Service(s): In relation to a Solution, pre-sale and post-sale support, installation, implementation, integration, modifications, updates and upgrades, maintenance and support provided by Company to Customer, or, as the case may be, to Customer’s customer(s) or partner(s) on Customer’s behalf, as detailed in the relevant service terms and in the relevant Product List(s). 

1.19  Solution: a Product that may be, where applicable, complemented by HW.

1.20 SW: Collectively, the proprietary software of Company and the software of other Persons used by Company that Company is authorized to license to third parties in connection with the Product Line.
 

Article 2: Terms of Delivery

2.1    Customer, at its discretion, can place orders for HW by submitting an Order in a manner reasonably required by Company from time to time. Each Order submitted will be considered irrevocable. Unless notified otherwise by company, all Orders shall be submitted electronically via E-shop or via email address: orders@ysoft.com or via OMNI Central, unless expressly agreed otherwise with Company in writing. Company reserves the right to modify the manner in which Orders shall be submitted, upon reasonable prior notice.

2.2    Each submitted Order shall contain:

(a)     the sales catalog number of the ordered HW (part number);

(b)     ordered volume for such HW (part number);

(c)     the desired place of delivery;

(d)     the unit book price quotation for the HW ordered (where applicable);

(e)     any Customizations (if applicable and agreed in advance),

for each ordered type of HW. 

2.3    Each Order shall remain in effect until the earlier of (i) Company’s acceptance of such Order, or (ii) Company’s rejection of such Order. 

2.4     Any Customizations of a HW ordered are subject to a prior agreement by Company confirming expressly such specific Customization(s) and its price.  Without an express prior agreement, Company bears no obligation to deliver the Customization(s) even in case the Order containing Customizations was confirmed by Company – without prior express agreement on Customization(s) Company fulfils the Order by delivery of non-customized HW.

2.5     If the Customer’s requests for delivery can be satisfied, Company will confirm the Order to Customer. Provided that such confirmation is delivered to Customer via standard means of delivery (including email, facsimile, personal delivery, courier service, etc.), a binding purchase agreement for the delivery of the ordered HW is deemed to be concluded between Company and Customer.

2.6      Should the Order contain a request for the Customizations, Company shall confirm the Order only after it has assessed the possibility of implementing the required Customizations and has also determined a delivery date. Customizations are never subject to the standard delivery time, even if Company fails to indicate a relevant time period.

2.7       Company shall bear no liability for the selection and suitability of the HW chosen by Customer for the purposes intended by Customer.

2.8       If the agreed delivery time (if any) is exceeded by more than thirty (30) calendar days, Company is obliged to pay to Customer a contractual penalty (liquidated damage) in the amount of 10% of the aggregate invoiced price of the HW that have been delivered with the delay mentioned above. This contractual penalty represents the lump-sum compensation of all costs and losses incurred in connection with the delay, and Customer is not entitled to claim any other compensation whatsoever, based on such delay.  

2.9        Company reserves the right to discontinue the supply of any HW at any time or to replace these HW with a new type of such HW. In case of already ordered HW, Company reserves the right ot deliver a more recent version of the ordered HW with functionality that is in substantial aspects equal and/or superior in comparison to the previously ordrered HW.

2.10       Unless agreed otherwise, the method for dispatch and delivery of the HW shall be FCA (Incoterms® 2010) to the carrier named by Customer in the Order, at the Company’s dispatch place listed for each HW Family on the OMNI Central. In case of sales via e-shop, the price for transport is agreed during the checkout process. Company is entitled to change the dispatch place at its sole discretion. Such change will not affect Orders already confirmed at the time of change. Other can only be used where Company expressly confirms such other dispatch and delivery method for the ordered HW proposed by Customer and simultaneously such agreement includes express indication of a price change due to changed dispatch and delivery method. Such agreed dispatch and delivery method only pertains to the particular confirmed Order.

2.11       In case Customer is offered the delivery of a shipment which is damaged, includes a shortage of quantity as compared to the proof of delivery document, then Customer may refuse delivery of the shipment or must sign the proof of delivery noting the damage or shortage, as applicable. In addition, Customer must file a claim for damages or shortages of this kind with Company without delay but no later than within ten (10) days after (attempted) delivery. Customer must ensure that the HW are inspected within ten (10) days after the delivery date. In such an inspection Customer must check whether the HW delivered are in conformity with the Order, namely (a) whether the correct HW have been delivered; (b) whether the number/quantity of HW delivered is in accordance with the agreed number/quantity; and (c) whether the HW delivered are in accordance with the specifications and requirements of normal use. In case Customer has accepted the delivery of a shipment which upon inspection contains an incorrect packing slip or commercial invoice, HW with a damaged condition, of incorrect specification or quantity, then Customer must file a claim for damages or shortages of this kind with Company without delay but no later than within five (5) days after inspection. Customer will have the options to mail, fax or email the claim to Company. Company will assess the claim and remedy any damage or shortage in an appropriate manner, determined based on the nature of damage or shortage and proof thereof. Such remedy represents final and complete compensation for the shortage or damage of the delivery and Customer is not entitled to any other compensation or performance

2.12       Company may suspend deliveries of the HW by a written notice to Customer at least fourteen (14) days before the date of the possible termination of delivery if Customer defaults in the payment of Company’s due receivables.

2.13       Customer should note these Hardware Terms carefully and where necessary obtain insurance cover in order to protect their interests.

2.14       Company will deliver the HW to Customer at the destination stated by Company in the order confirmation. The HW will remain Company’s property until Customer has paid the Order in full.

Article 3: Limited hw Warranty

3.1   Company represents and warrants that at delivery any HW with the exception of testing pre-production units, will comply with the applicable safety standards, environmental and governmental laws and regulations requied within the territory of the United States and European Union. Coompany may require additional certifications and achieve compliance in additional regions at its convenience. Current list of certifications can be requested from Company by Customer at their convenience.

3.2  Company offers limited HW warranty (“Warranty”) for the HW as a Service to be purchased by Customer.

3.3  The Warranty does not apply to:

a. Consumable HW that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship;
b. Defects caused by operating the HW not in accordance with the user manual, technical specifications or other guidelines and materials published for the respective HW by Company. Such guidelines may include carrying out Regular Inspections and maintenance;
c. Defects caused by usual wear and tear or otherwise due to usual aging of the HW. For avoidance of doubt, a defective spare part scheduled to be replaced within a Regular Inspection shall be considered as a defect caused by the usual wear and tear.
d. The HW, which was modified or disassembled by a person other than a fully trained technician, or if its malfunction was caused by an action of Customer’s technician (either internal or external) or by a third party.

3.4  The warranty period starts on the date of delivery of the of the relevant HW but not later than thirty (30) days after the date of dispatch of the relevant HW for the delivery to Customer (hand-over of the HW for delivery to Customer).

3.5  In case any HW or its part (as applicable) is to be returned to Company under the Warranty, Customer shall bear the costs of and arrange for the transpor of the HW to the nearest Company’s repair center as listed on the Customer Portal.

3.6  Customer shall exercise its Warranty rights and claim the rights only in the manner determined and published/announced by Company from time to time.

3.7  Customer shall file claims under the Warranty via Customer Portal using a tool as provided from time to time by Company.

3.8  Company shall not be liable for any Defects, resulting from interference with interconnected devices or software supplied by a third party. Should Company discover, at any time, in connection with the filing of a claim regarding a defective HW, that the claimed defects arose from, or in relation to, the activities or operation of third party’s devices or software, Customer must submit any requests regarding the inappropriate quantity, incorrect specifications, incorrect billing or damage with respect to the HW, without delay following the take-over of such HW. Within the period of time delivery methods identical to the standard delivery time from the delivery of the request or, if applicable, from return of the faulty hardware HW, Company will assess the claim and remedy any defective performance in an appropriate manner determined based on the nature of the defect. Such remedy represents final and complete compensation for the defective delivery and Customer is not entitled to any other compensation or performance.

3.9  Company’s actions performed in relation to such a Defect and the costs associated therewith, shall, in accordance with the valid price list of Company, be invoiced to Customer that filed such a claim.

3.10 Unless indicated otherwise for a particular HW item within the Order confirmation provided to Customer by Company, Company grants for the relevant HW (part number) a Warranty for a period specified in Company’s price list valid at the time of placement of the Order; unless specified otherwise the warranty period shall be identical with the duration of the relevant paid subscription period applicable to the Solution which the HW is a part of.

3.11 Customer has the following warranty rights:

a. the right to have a defective HW repaired;

b. the right to have defective HW replaced with a fault-free version of the HW where the repair is not economically feasible or possible; or
c. the right to return the defective HW for a complete refund if the HW cannot be repaired or replaced, all within thirty (30) days from the notification of the warranty claim.

3.12 Unless Customer has made advance payments for any of the premium forms of customer support or services based on the Company’s valid price list, and unless Customer Status entitles it to a premium warranty or to an extended service warranty:

a. Customer shall submit claims under the Warranty via Customer Portal using a tool as provided from time to time by Company and deliver defective HW to the nearest Company’s repair center as listed at the OMNI Central.
b. Within a period of thirty (30) days from submitting the claim and delivery of the defective HW, if applicable, Company shall inform Customer whether it accepts the respective Warranty claim. Company may, at its convenience, provide replacement unit to Customer even before the return of the defective HW.
c. The Customer’s carrier account details shall appear on the relevant claim form if Customer is interested in a prioritized delivery of the HW.

3.13 If the Warranty claim is accepted, Company shall proceed in accordance with Article 3 hereof.

3.14 If the Warranty claim is rejected or revoked as not falling under the Warranty and/or due to an incorrect information provided as a part of the Warranty claim, the faulty HW will be dispatched/returned to Customer at the expense of Company, unless agreed otherwise. _______________________________________
Y Soft Corporation, a.s.
Y Soft North America, Inc.
Y Soft Australia Pty Ltd
Y Soft France SARL
Y Soft Magyarország Kft.
Y Soft Israel Ltd.
Y Soft Japan Ltd.
Y Soft Asia Pacific Pte. Ltd.


YSOFT OMNI SERIES SERVICE TERMS

As of the Effective Date, as it relates to support and maintenance of Products, Company and Customer agree to these YSoft OMNI Series Service Terms (“Service Terms”).
 

Article 1: Definitions

Capitalized terms used but not defined in these YSoft OMNI Series Service Terms shall have the meaning ascribed to them in the Agreement or the Terms of Sale, as applicable.

1.1   Agreement: an agreement concluded by and between a Person member of the Parent Group and Customer incorporating  these Service Terms by reference, including each exhibit and schedule thereto, as such may be amended, supplemented, renewed, extended or otherwise modified from time to time, regulating use of Product(s) by Customer.

1.2  Availability: the time that a Product is available for use to Customer.

1.3  Committed Availability: as it relates to a Product, Availability committed by Company to Customer.

1.4  Business Day: any day identified as such for each operating center in OMNI Central.

1.5  Business Hours: the hours of operation specified for each operating centre in OMNI Central.

1.6  Company: a Person member of the Parent Group
(i) which concluded Agreement with Customer; or
(ii) from which Customer purchased a Product on E-shop.

1.7  Customer: (i) where the purchase and use of Product(s) is governed by Terms of Sale, the Person purchasing such Product(s) via E-shop; and (ii) where the purchase and use of Product(s) is governed by Agreement, the Person identified as such in the preamble of the Agreement, together with its successors and permitted assigns.

1.8  Defect: is an identified error in SW code or an identified HW malfunction that caused the occurrence of one or more Incidents.

1.9  E-shop: the online shop available at www.ysoft.com.

1.10 Effective Date: The date on which Customer
(i) purchases a Product on E-shop; or (ii) concludes
the Agreement with Company.

1.11  Group: In relation to a Person, that Person and every direct or indirect subsidiary or holding company of such Person or a subsidiary or holding company of any such subsidiary or holding company from time to time.

1.12 Helpdesk: is a Service focused on providing technical consultation on the setup, operation and maintenance of SW in response to Service requests and Incident reports.

1.13  HW: Hardware, including devices, terminals, card readers and other equipment, offered as a component of, or in connection with, a Solution offered by Company within the Product Line.

1.14  Incident: an occurrence of a malfunction, interruption in functionality or Availability or Committed Availability, reduction or deviation from standard quality, or the level of quality committed in SLA, of Service and/or operation of SW.

1.15  License: a right to use the intellectual property included in the Solution granted by Company to Customer under the Terms of Sale or the Agreement, as applicable.

1.16  Order: An order for Service(s) under these Service Terms.

1.17  Parent: Y Soft Corporation, a.s., a joint-stock company organised under the laws of the Czech Republic, with its registered office at Technicka 2948/13, 61600 Brno, Czech Republic, ID No.: 26197740, VAT: CZ26197740, registered in the Commercial Register maintained by the Regional Court in Brno in Czech Republic, under File No. B 8045.

1.18  Person: any sole proprietorship, corporation, joint stock company, business trust, firm, joint venture, partnership, unincorporated organisation, association, enterprise, limited liability company, limited liability partnership, public benefit corporation, trust or other legal entity or organisation, or any government (whether federal, state, provincial, county, city, municipal or otherwise, including any instrumentality, division, agency, body, political subdivision or department thereof).

1.19  Product: means SW and related Service(s) (if any).

1.20  Product Line: the line of Solutions identified by Company as YSoft OMNI Series, as such may be offered by Company from time to time.

1.21  Resolution: (i) for Incidents: use of means that Company, at its own discretion, deems adequate to resolve the relevant Incident, namely reconfiguration of the relevant SW or its environment, a SW update with a newer version, a temporary fix (HOTFIX), or a workaround that restores the availability or functionality of Product to that prior to the occurrence of such Incident; or (2) for Defects: Providing a new version of the relevant SW in which the relevant Defect is fixed.

1.22  Response: (i) as it relates to a reported Incident, information about next steps targetted to resolve
such Incident, or a request by Company representative for additional information identified by Company as information required to assess and/or resolve such Incident; (ii) as it relates to a requested Service, information on when such request can be processed; (iii) as it relates to an inquiry, requested information or request for additional information.

1.23  Service(s): As it relates to a Solution, pre-sale and post-sale support, installation, implementation, integration, modifications, updates and upgrades, maintenance and support provided by Company to Customer, or, as the case may be, to Customer’s customer(s) or partner(s) on Customer’s behalf, as detailed herein and in the relevant Product List(s). 

1.24  Service Terms: These Service Terms, as such may be amended, supplemented, renewed, extended or otherwise modified from time to time.

1.25  SLA (Service Level Agreement): if made available by Company, is an optional, paid Service that guarantees, inter alia, SW Support at a committed level (of committed scope and support reaction times) and/or the Availabilityspecified therein.

1.26  Solution: a Product that may be, where applicable, complemented by HW.

1.27  SW Support: is a Service specified in the relevant Product List available in OMNI Central.

1.28  SW: Collectively, the proprietary software of Company and the software of other Persons used by Company that Company is authorized to license to third parties in connection with the Product Line.

1.29  Terms of Sale: Terms of Sale applicable to each purchase of a Product or Solution made via E-shop.
 

Article 2 - support levels 

Customer shall ensure that support pertaining to any Solution is organized within support levels defined as follows:

1st Level: Customer is responsible for 1st level support to end-users of the Solution purchased by Customer, which entails day-to-day administration of the Solution and addressing general issues associated with the use of the Solution(unless agreed otherwise);

2nd Level: Customer is responsible for for 2nd level support to end-users of the Solution purchased by Customer, which entails an in-depth technical support that is beyond the basic 1st level support, including handling break/fix and configuration issues, guiding end users on troubleshooting of technical issues that could not be addressed as part of 1st level support, f addressing issues escalated by 1st level support, helping end users manag SW installations and HW repair, and escalating issues that cannot be resolved as part of 2nd level support to 3rd level support, as necessary (unless agreed otherwise );

3rd Level: Company shall provide 3rd level support and maintenance for Solution(s) purchased
by Customer to Customer and, where expressly agreed in writing with Customer, agreed Service(s) Customer’s customer(s) or partner(s).

Where Customer requests 1st and 2nd level support from Company, Company reserves the right
to refuse such Service and if provided, Services provided as part of such support may carry a fee, such fee to be agreed with Customer before such Services are initiated, if applicable.

Article 3 - Service orders

3.1    Customer, at its dicretion, can seek a Resolution or request a Service by submitting an Order in a manner reasonably required by Company from time to time. Each Order submitted will be considered irrevocable. Unless notified otherwise by Company, all Orders shall be submitted electronically via E-shop or via email address: orders@ysoft.com or via OMNI Central, unless expressly agreed otherwise with Company in writing. Company reserves the right to modify the manner in which Orders shall be submitted, upon reasonable prior notice.

3.2    Each submitted Order shall contain:

(a)     sales catalog number of the ordered Service (part number);

(b)     requested place for the ordered Service to be provided (where applicable);

(c)     unit book price quotation for the ordered Service (where applicable); and

(d)     number of units of the ordered Service (where applicable)

per each type of Service.
 

3.3    As part of an Order, Customer shall provide information about any warranty or post-warranty services, installations, maintenance and technical support, as the case may be, provided by a third party as such may impact the manner or scope of Service(s) to be provided in connection with such Order.

3.4    Except as expressly agreed otherwise with Company in writing, Customer is not authorized to offer any Product or Service, or sell any Product or carry out any Service, on behalf of Company to a third party.

3.5    Each Order shall remain in effect until the earlier of (i) Company’s acceptance of such Order, or (ii) Company’s rejection of such Order. 

 

Article 4 - product delivery terms

4.1   Unless expressly set forth otherwise in the Agreement or SLA, no warranties or conditions, whether express, implied or statutory, including the implied warranties of satisfactory quality and fitness for a particular purpose and the ability to achieve any particular result, are made by Company with respect to any Product, SW, or any Services provided by Company, and all Products, SW, and Services are provided on an “AS-IS, WHERE-IS and AS AVAILABLE” basis.

4.2   The Company reserves the right to modify or discontinue  a Product, subject to the Agreement or the Terms of Sale, as applicable. 

4.3   Company may suspend provision of Service(s) upon a fourteen (14) days prior written notice to Customer in the event that Customer is in default with payment of any amounts due to Company under SLA, the Agreement or the Terms of Sale, as applicable, for more than fourteen (14) days.
 

Article 5 - sla services

5.1    All available SLA Services are listed on Product Lists. Company undertakes to provide SLA Services in the scope and as specified on the relevant Product List(s) valid at the time that Customer orders such Service(s). Customer can order any SLA Service(s) listed on any Product List(s) relevant to the Product(s) purchased
by Customer.  

5.2    Where available for a Product, and subject to (i) valid and effective SLA, and (ii) any and all payments due and payable by Customer in connection with Customer’s SLA pursuant to the Company’s then current price list having been paid when and as due, Customer is entitled to receive all SLA Service(s) as ordered at the SLA level specified on the Product List(s) relevant for Product(s) purchased by Customer.

5.3    Where Services are performed based on an Order of Customer whereby Customer ordered such Services for its customer(s) or partner(s) in accordance with an agreement with Company contemplated in Section 3.4 hereof, such Services shall be deemed provided when delivered to such Customer’s customer(s) and/or partner(s) designated by Customer in such Order in accordance with such Order and such agreement. For the avoidance of doubt, in any event Customer shall remain primarily liable for Services delivered to Customer’s customers and partners.

 

Article 6 - additional services

6.1      Customer has the right to access Company’s knowledge base via OMNI Central and use all available information and documentation available thereon for purposes of implementation and maintenance of the purchased Product. Company may, at its sole discretion, provide Customer a direct contact to a Solution architect  or a Solution consultant.

6.2      In case of an Incident or in connection with a Defect and for Service requests and other Solution related queries that are not related to any specific Customer´s Product deployment, Customer shall have the right to:

(a)       use any contact number provided by Company in OMNI Central or otherwise made available to Customer to discuss general technical questions or issues that can reasonably be expected to be resolved in an on-call consultation; or

(b)       submit an Incident/Defect or Service request into the  Helpdesk via OMNI Central.

6.3      SW Support is available for a fee stipulated on Company’s then current price list:

(a)       for SW expressly listed on a pricelist of Company published in OMNI Central for the term indicated thereon, effective as of the earlier of the date that Customer activates a License for the use of such SW or the date that falls onto the date that is thirty (30) days from the date that License certificate to or for the benefit of Customer is issued by Company (automatically activated SW Support); or

(b)       in the event that Customer is a holder of a License where SW Support is a Service provided by Company to each License holder and/or (where available and agreed) License holder’s customer(s) (optionally activated SW Support).

6.4      SW Support enables Customer, its employees and/or, where Customer’s customer(s) or parner(s) and their respective employees are authorized to benefit from SW Support, in particular to:

(a)       access the  Helpdesk via OMNI Central and report Incidents or Defects and submit Service requests;

(b)       consult Incidents or Defects with consultants
at contact numbers where provided by Company for consultations as set forth in Section 7.3 hereof;

(c)        obtain support for new operating system versions of SW, database engine environments, accounting driver versions, all as defined in the relevant, then valid SW Support Product List.

6.5      Company reserves the right to support always only the latest/current and fully updated main version of SW as part of SW Support.

6.6      Where Customer obtains a customization of a Solution, as it relates to such customized Solution or any part thereof, Company will not provide any Service to Customer unless such Service is expressly agreed in writing with Company. For the avoidance
of doubt, unless expressly agreed otherwise with Company in writing,Company will not bear any costs associated with any support or maintenance of, or other services provided to Customer in connection with, any customized Solution by a third party. For the avoidance of doubt, further, as it relates to a customized Solution, Company will only provide Service(s) Customer is eligible for under automatic or optional SW Support unless this is expressly agreed with Company in writing.

Article 7 - Helpdesk

7.1      Helpdesk is available to Customer provided that Customer shall submit one request per query or issue and provided that every request submitted to the Helpdesk shall contain all information that a Person exercising reasonable business judgment would understand to be required for Company to address such request, namely:

(a)       description of request category (lack/reduced Availability, Resolution of an Incident or Defect or a Service request);

(b)       A detailed description of the request, and where Resolution of an Incident or Defect is concerned, also a description of the circumstances in which the Incident or Defect occured;

(c)       Tracking ID of any related request(s), if relevant;

(d)       Name and contact information for an authorized representative to be contacted regarding next steps; and

(e)       If different than contact in (d), name and contact information for a representative of Customer to be continuously updated on progress in processing the requestor on Resolution of an Incident or Defect, as applicable.

7.2      Company reserves the right to, at its sole discretion, merge requests submitted by Customer or delete or disregard duplicate requests of Customer.

7.3      Where a contact telephone number(s) is/are listed or otherwise made available by Company in connection with Services, such contact number(s) do(es) not grant access to the Helpdesk and no requests discussed during any call placed to any such contact number will be submitted into the Helpdesk or processed by the Helpdesk as a result of Customer’s contact at this contact number unless submitted to the Helpdesk by Customer as provided in Section 7.1 hereof. Any such contact number, if made available, is designed to enable Customer to have readily access to highly skilled technical consultants of Company for consultations that do not involve Incident or Defect Resolutions or requests that cannot be addressed in an on-call consultation; this Service is designed namely to enable consultations during Solution(s) implementationphase. Where available, assistance at any such contact number is available only during Business Hours (unless specified otherwise) and in English language (other languages may be available but are not guaranteed).

 

Y Soft Corporation, a.s.

Y Soft North America, Inc.

Y Soft Australia Pty Ltd

Y Soft France SARL

Y Soft Magyarország Kft.

Y Soft Israel Ltd.

Y Soft Japan Ltd.

Y Soft Asia Pacific Pte. Ltd.

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