General Terms and Conditions

These General License and Services Conditions apply to all Licenses, Software and Services granted and/or provided by Misterine to Customer under Agreement.

    1. The following capitalized terms used in GLSC shall have the following meanings unless GLSC, Agreement or their context require otherwise:
      1. Agreement” means Software License Agreement entered into by and between Misterine and Customer on date stipulated in Agreement.
      2. Confidential information” has meaning set forth in Clause 6 herein.
      3. Customer” means physical person or legal entity specified in Agreement and marked as “Customer”.
      4. Data” means any file, information, text and other content uploaded to or stored in Services by Customer.
      5. Documentation” means any related explanatory materials and any other documentation related to the Software, including its description, specifications, any description of properties or operation, any description of the operating environment in which the Software is used, instructions for use or installation of the Software or any description of how to use the Software.
      6. Fees” means collectively License Fee and Service Fee.
      7. GLSC” means these General License and Service Conditions.
      8. Intellectual property” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, rights of author, know-how, trademark, trade secret, database protection or other intellectual property right laws, and all similar or equivalent rights or forms of protection, in any part of the world.
      9. License Fee” means the consideration which Customer shall pay to Misterine for the usage of License and Software.
      10. License” means right to use Software in accordance with the provisions of Agreement and GLSC for any legal purpose as set out in GLSC.
      11. Misterine” means Misterine s.r.o., ID No.: 052 49 899, a Czech company established under laws of the Czech Republic having its registered office at Karolinská 661/4, 186 00 Praha 8, the Czech Republic, registered in Commercial Register maintained by Municipal Court in Prague under file No. C 260683.
      12. Parties” means collectively Misterine and Customer.
      13. Party” means individually one of Parties.
      14. Period” means the time limit agreed in Agreement for which License is granted in consideration of License Fee and/or Services are provided in consideration of Service Fee.
      15. Service Fee” means the consideration which Customer shall pay to Misterine for the usage of Services.
      16. Services” means any and all Services agreed in Agreement.
      17. Software” means (a) the program Misterine Studio and/or Misterine App and/or Misterine Server, within scope agreed (marked) in Agreement, and all components thereof provided exclusively in the form of executable object code; (b) all the contents of the installation package provided, including the object code form of the supplied Software; (c) any Documentation; (d) copies of the Software including patches, addons, extensions, modified versions and updates, if any.
    2. For the purposes of Agreement and GLSC, unless expressly stipulated otherwise or unless the context otherwise requires, the following interpretation rules shall apply:
      1. References to “Agreement” shall be construed as references to Agreement including GLSC.
      2. References to “GLSC” shall be construed as references to GLSC only.
      3. References to “Clause”, “Clauses”, “Article” or “Articles” without further specification shall be construed as references to Clause, Clauses, Article or Articles of GLSC.
      4. References to “days” shall be construed as references to calendar days.
      5. The terms defined in Agreement and/or this GLSC in singular shall include the plural, and vice versa.
      6. The headings used in Agreement and/or GLSC are inserted for reference only and shall not affect or serve for the interpretation of Agreement and/or GLSC.
      7. In the event Agreement or any part of it is translated into another language, only the English language version shall be valid in the event of a conflict, unless agreed otherwise.
    3. In the absence of a specific contract signed by and between Parties, the mere act of Customer proceeding with the installation of the Software implies the full acceptance of GLSC integrated in Software installation procedure.
    4. When a specific contract is signed by and between Parties, the only terms and conditions that may prevail over these GLSC are those integrated in such contract that have precedence over these GLSC.
    1. In consideration of License Fee, Misterine grants Customer a non-exclusive, non-transferable, time-limited, and territorially non-limited right to use Software without quantitative limitations of end-users, in accordance with the terms and conditions of Agreement, and only for Customer’s business purposes only.
    2. Customer’s right to use Software applies to Customer’s use of the version of Software that is current at the time. For future versions and new Software, Customer’s right to use Software that is available at the time of first release of such will apply. Changes Misterine makes to the Customer’s right to use Software for a particular version will not apply unless Customer chooses to have those changes apply.
    3. Misterine warrants to be the sole owner of Software and that it has all Intellectual property rights of Software. Agreement does not grant or transfer to Customer any Misterine’s Intellectual property rights of Software. Nothing confers or shall be deemed to confer to Customer any rights to use any Misterine’s Intellectual property rights.
    4. Without limitation, Customer agrees not to modify, alter, reverse, engineer, interfere, decompile, disassemble, disclose, decrypt, incorporate other software or create derivative work of any part of Software or other modifications which reduce the Software to human–readable form to gain access to Intellectual property rights or Confidential information of and/or related to Software.
    5. Customer may copy Software for backup purposes only, provided that all Misterine’s trade names, trademarks or copyright notices and all other Intellectual property notices or markings are reproduced.
    6. Customer agrees that it shall not itself, or through any parent, end-user, agent or any other third party: sell, lease, license, sublicense, lend, encumber or otherwise deal by all means with any portion of Software.
    1. In consideration of Service Fee, Misterine grants Customer access to, and use of, Services, in accordance with the terms and conditions of Agreement, and only for Customer’s business purposes only.
    2. Services generally involve some usage of Software. Customer represents, warrants, acknowledges and agrees that Misterine has and will retain all Intellectual property rights, title, interests and all ownership, in and/or to Software, the use of Software during accessing or using Services. Nothing confers or shall be deemed to confer on Customer any rights to use any Intellectual property rights of Misterine, unless such rights are explicitly granted in writing by Misterine in a separate agreement.
    3. Customer shall prevent unauthorized use of Services and terminate any unauthorized use of or access to Services. Customer shall promptly notify Misterine of any unauthorized use of or access to the Services.
    4. Customer agrees that it shall not itself, or through any parent, end-user, agent or any other third party: sell, resell, or lease Services, use Services for activities where use or failure of Services could lead to physical damage, death, or personal injury, reverse engineer Services, or attempt or assist anyone else to do so, unless this restriction is prohibited by law, or use Services, including the export or re-export of Data, in violation of any laws or regulations.
    5. Customer is solely responsible for the content of all Data. Customer will secure and maintain all rights in Data necessary for Misterine to provide Services to Customer without violating the rights of any third party or otherwise obligating Misterine to Customer or to any third party. Misterine does not and will not assume any obligations with respect to Customer Data or to Customer’s use of Services other than as expressly set forth in Agreement or as required by applicable law.
    6. Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of Services. Customer must promptly notify Misterine support about any security incident related to Services.
  4. DATA
    1. Any Data remains Customer’s. Misterine do not claim ownership in any of Data that Customer upload to, or store in Services.
    2. Customer is responsible for any Data. Customer represents and warrants that for duration of Period, Customer have (and will have) all the rights necessary for Data and that collection, use and storage of Data will not violate any law or right of others. Misterine cannot be held responsible for Data or anything else uploaded to, or stored in Services.
    3. Agreement constitutes Customer’s instructions to Misterine to process Data. Misterine shall only process, access, use, store and transfer Data as Customer instructs in order to provide and maintain Services and to fulfil Misterine’s obligations hereunder. Any Misterine personnel who have access to Data will be bound by appropriate confidentiality obligations.
    4. Customer agrees that Misterine and its subcontractors may transfer Data to and access, use, and store Data in locations other than Customer’s country.
    5. Misterine shall use industry standard technical and organizational security measures to transfer, store, and process Data.
    6. Misterine, or any person appointed by Misterine may review Data to determine whether it is illegal or violates Agreement, and Misterine may remove or refuse to upload or store content that Misterine reasonably believes violates the law.
    1. Payment obligation of Fees arises as of the first day of the Period or renew Period as per Clause 6.2.
    2. Fees shall be paid to Misterine within 30 days after the date of payment obligation arises as per Clause 5.1.
    3. Fees shall be payable on the basis of an invoice issued by Misterine or its partner.
    4. In case of Customer’s default on payment of Fees, Customer shall bear 0.05% daily interest from the amount due until paid in full, including payment of such interest.
    1. License is temporary and is granted as time-limited for Period and its intended use (limitation might apply according to the license or other agreements).
    2. Period is automatically renewed for the same duration, unless Customer notifies Misterine at least 30 days before expiration of Period that Customer is interested in terminating License.
    3. Agreement may be terminated before the end of Period by (a) mutual agreement of Parties; or (b) withdrawing from Agreement in writing for the reasons stipulated in Clauses 6.4 or 6.5 hereof.
    4. Without prejudice to any rights that have accrued hereunder Misterine may withdraw Agreement (a) upon any default by Customer in the payment provisions longer than ten (10) days; (b) upon any breach of the provisions of this Agreement; (c) upon the commencement of any insolvency or bankruptcy proceedings against Customer; (d) if any event occurs (or circumstances exist) which, in its reasonable opinion, is likely to materially and adversely affect Customer’s or Customer’s ability to perform all or any of its obligations under, or otherwise comply with the terms of Agreement.
    5. Without prejudice to any rights that have accrued hereunder Customer may withdraw Agreement if Misterine breaches any of its obligations or warranties hereunder and does not remedy this breach even within the additional period specified by Customer in the request to Misterine to remedy such breach, where such additional period is not shorter than ten (10) days.
    6. Withdrawal from Agreement shall take effect on the day following the date on which the withdrawal notice was delivered to Party, unless the Party withdrawing from Agreement indicates a different period of time in its written withdrawal.
    7. Termination of Agreement in accordance with the rights contained in this Article shall not affect the accrued rights, remedies, obligations or liabilities of Parties existing at termination. Any provision of Agreement which expressly or by implication is intended to come into or continue in force on or after termination of Agreement.
    8. Neither Party in exercising its rights to terminate Agreement in accordance with the terms and conditions hereof shall incur any liability whatsoever for any damage, loss or expense of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any such termination (except if such termination is for a material breach of Agreement), whether or not the terminating Party is aware of any such damage, loss or expense. Any termination hereof shall not impair any rights nor discharge any obligations which have accrued to Parties as of the effective date of such termination.
    9. Conditions set forth for termination of License shall be similarly applicable for termination of Services provided.
    10. Misterine may delete all Data from Services after termination of Period (or renewed Period), but not earlier than 30 days as of termination. In such case all Data will be lost.
    1. Confidential Information includes any and all information relating to (a) Software; (b) Services; (c) Documentation; (d) any personally identifiable data or information regarding any Customer; (e) any and all information disclosed by Misterine to Customer, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary; (f) any notes, extracts, analyses or materials prepared by Customer which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (g) the terms and conditions of Agreement.
    2. Confidential Information does not include information that Customer can clearly establish by written evidence: (a) is or becomes known to Customer from a third party without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission of Customer; or (c) is independently developed by Customer without the use of Confidential Information.
    3. Customer will make no use of Confidential Information for any purpose except as expressly authorized by Agreement. Except as expressly provided in Agreement, Customer will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in Agreement, Customer will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of Misterine. In the event that Customer is required to disclose Confidential Information pursuant to law, customer will notify Misterine of the required disclosure with sufficient time for Misterine to seek relief, will cooperate with Misterine in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
    1. Misterine warrants that each version of Software shall perform substantially as described in Agreement, Documentation or another documentation relating to each version of Software. If it does not, and Customer notifies Misterine within Period, then Misterine will, at its option, (1) return License Fee Customer paid for License or (2) repair or replace Software.
    2. Services and Software are provided “AS IS”.
    3. To the fullest extent permitted by law, except as expressly stated in Agreement, Misterine does not make any warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, or non-infringement, if any, made to Customers. Customer is responsible for using Software and/or Services in accordance with the terms set forth herein and backing up any stored Data on Services.
    4. No person is authorized to make any other warranty or representation concerning Software and/or Services. Customer will make no warranty, express or implied, on behalf of Misterine.
    1. Misterine’s aggregate liability to Customer under Agreement relating to License or Software, whether for breach or in tort, is limited to License Fee paid by Customer for the License for one Period, which gives rise to the claim.
    2. Misterine’s aggregate liability to Customer under Agreement relating to Services, whether for breach or in tort, is limited to Service Fee paid by Customer for Services for one Period, which gives rise to the claim.
    3. In no event will Misterine be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of Agreement (including loss of business, revenue, profits, use, data or other economic advantage), however caused and regardless of the theory of liability, even if Misterine has been previously advised of the possibility of such damages, and even if any exclusive remedy provided for herein fails of its essential purpose.
    1. Customer will indemnify, defend and hold harmless Misterine from and against any and all claims, damages and expenses (including reasonable attorneys’ fees and costs of litigation) by any third party resulting from any acts or omissions of Customer relating to its activities in connection with Agreement, Customer’s breach of Agreement, or Customer’s misrepresentations relating to Misterine, License, Software, Services, Documentation or Agreement, regardless of the form of action.
    2. Customer will be solely responsible for any claims, warranties or representations made by Customer or Customer’s representatives or agents which differ from the warranties provided by Misterine in Agreement.
    1. Misterine agrees to defend or, at its option, settle any claim or action against Customer to the extent arising from a third-party claim that a permitted use of Software by Customers infringes any patent or copyright, provided Misterine has control of such defense or settlement negotiations and Customer gives Misterine prompt notice of any such claim and provides reasonable assistance in its defense.
    2. Misterine will not be liable under this Article if the infringement arises out of Customer’s activities after Misterine has notified Customer that Misterine believes in good faith that Customer’s activities will result in such infringement.
    3. The foregoing states the entire liability of Misterine with respect to infringement of Intellectual property rights.
    1. Agreement does not constitute either Party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither Party will have the power to obligate the other in any manner whatsoever.
    1. Misterine shall not be liable for failure or delay in performance of any of its obligations hereunder if such delay or failure to perform is caused by circumstances beyond its control.
    2. Customer shall be required to accept any delayed fulfilment, lack of Services, or any delivery made within a reasonable time.
    1. Customer acknowledges that any breach or threatened breach of Agreement involving an unauthorized use of Confidential Information or Misterine’s Intellectual property will result in irreparable harm to Misterine for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, Misterine will be entitled to seek injunctive or other equitable relief, as appropriate.
    2. If Misterine seeks injunctive or other equitable relief in the event of a breach or threatened breach of Agreement by Customer involving an unauthorized use of Confidential Information or Misterine Intellectual property, Customer agrees that it will not allege in any such proceeding that Misterine’s remedy at law is adequate.
    1. Customer is not entitled to assign its receivables under Agreement (including security assignment of receivable), pledge its receivables under Agreement or transfer its obligations under Agreement to a third person without a prior written consent of Misterine.
    2. Customer is not entitled to unilaterally set off any of its receivables against any receivables of Misterine under Agreement.
    3. Parties expressly agree that any disputes or claims ensuing from Agreement with respect to any Party or any disputes or claims relating to License, use of Software and/or provision of Services shall be settled by a Czech court. The local competence of the court of the first instance shall be govern according to the place of registered seat of Misterine, unless the Czech law provides an exclusive competence.
    4. Should any of the provisions of Agreement be invalid or unenforceable, this shall not affect the validity of the other provisions of Agreement, which shall remain valid and enforceable in accordance with the conditions stipulated therein.
    5. Agreement may only be modified in written form, signed by an authorized representatives of Parties or a person expressly authorized to act in this capacity under the terms of a power of attorney.
    6. The Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire agreement between the Parties related to this subject matter.

Last update: 18 January 2022

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