Terms and Conditionsof company Schwarzsoft s.r.o., identification no.: 07048904, with registered office at Palackého 629/9, 779 00 Olomouc, registered in the Czech Commercial Register administered by the Regional Court in Ostrava, section C, entry 77951 (hereinafter the “Provider”)
(hereinafter the “Terms and Conditions”)
1. Introductory provisions
1.1
These Terms and Conditions regulate in accordance with the provisions of Section 1751 (1) of Act No. 89/2012 Sb., the Civil Code, as amended (hereinafter the “Civil Code”), the rights and obligations of the Provider and their customers (hereinafter the “Customer”) arising in connection with use of a website operated by the Provider at www.instagto.com (hereinafter the “InstaGTO Website”) and the terms and conditions of contracts concluded between the Provider and Customers regarding the software InstaGTO of the Provider (hereinafter the “Software”) via an online store of the Provider operated on the InstaGTO Website (hereinafter the “Contract”).
1.2
The provisions of the Terms and Conditions are an integral part of the Contract from the moment of its conclusion. Arrangements deviating from the Terms and Conditions may be agreed in writing in the Contract; such arrangements shall prevail over the provisions of the Terms and Conditions.
1.3
The Terms and Conditions shall apply both to cases where the Customer is a natural person who acts outside the scope of their business activity or within the scope of their profession (hereinafter the “Consumer”), and to cases where the Customer is a person who acts within the scope of their business activity or within the scope of their profession when concluding the Contract (hereinafter the “Entrepreneur”).
1.4
These Terms and Conditions and all legal relations arising from them, including the Contract, are governed by the law of the Czech Republic.
2. Registration and User Account
2.1
In order to conclude the Contract and gain a license to the Software, the Customer must register in compliance with these Terms and Conditions (hereinafter the “Registration”). The Customer will register via online registration form available on the InstaGTO Website. Upon successful Registration, a user account is automatically set up by the Provider for the Customer (hereinafter the “Account”).
2.2
Only natural person older than 18 years with full legal capacity in accordance with the Czech law is allowed to register and conclude the Contract. By submitting the registration form on the InstaGTO Website, the Customer confirms they comply with these conditions.
2.3
In the course of the Registration, the Customer is obliged to fill in all the information required by the registration form on the InstaGTO Website; it is not possible to complete the Registration without providing the information marked as mandatory.
2.4
All information provided by the Customer in the course of the Registration must be correct and true. In case of any subsequent change, the Customer is obliged to update the information without undue delay through their Account. The Provider is not liable for any damage or harm incurred if the Customer provides incorrect or inaccurate information or breaches their obligation to update the information pursuant to this paragraph.
2.5
Before submitting the registration form, the Customer may check and change the filled in information in order to detect and correct potential errors. The registration form is sent to the Provider by clicking on button “Place Order” in the registration form. The Provider considers the data submitted in the registration form as correct and true.
2.6
Before submitting the registration form, by checking the respective checkbox in the registration form, the Customer must confirm that they agree with these Terms and Conditions, and that they have read the Privacy Policy of the Provider. Otherwise, the Registration cannot be completed.
2.7
The Registration is completed once the registration form is submitted and the Provider confirms the completion of the Registration via e-mail sent to the address provided by the Customer in the registration form. Upon successful completion of the Registration, the Contract is concluded.
2.8
The Customer is entitled to use only their own Account. In order to access the Account, it is necessary to enter the login information provided in the course of Registration. The Customer is obliged to protect their login information and prevent any third party from unauthorized access to the login information. The Customer is liable for any damage or harm caused by insufficient protection of their login information. In case of suspicion of any disclosure or misuse of the login information, the Customer must change the login information as soon as possible and notify the Provider.
2.9
The Customer may not allow (actively or by omission) any third party to access and/or use the Account of the Customer. The Provider shall not be liable for any damage or harm resulting from unauthorized access to the Account as a result of Customer’s failure to comply with Customer’s obligations under the Terms and Conditions. The Customer is solely responsible for any activity carried out under the Account, regardless of whether the activity is carried out by the Customer, a person authorized by the Customer or another third party.
2.10
The Customer, who is a Consumer, agrees that the Account will be set up before the time limit for withdrawal from the Contract in accordance with Section 1829 of the Civil Code expires. The Customer acknowledges that they will thereby lose their right of withdrawal from the Order within 14 days from conclusion of the Contract.
3. Software, End User Agreement
3.1
The Software, its functions, system requirements and other parameters are described in the Software documentation available at: instagto.com. The Software is a proprietary software, i.e. it requires a download and installation on an end device of the Customer in order to be used.
3.2
The Software is created and intended as a simulator allowing the Customer to train and improve their skills in game of poker; the Software is however not intended and does not serve for gambling within the definition of the Act no. 186/2016 Sb., on Gambling, as amended, as the Software does not allow the Customer to place any bets or other deposits in real money or other similar values.
3.3
Software may be used only by registered Customers. In order to use the Software, the Customer has to:
- 3.3.1
download the Software from the InstaGTO Website using a link provided by the Provider upon Registration and install the Software on their end device,
- 3.3.2
consent to the End User License Agreement regarding the Software by checking the relevant checkbox in a dialog window displayed in the course of the installation of the Software to end device of the Customer (hereinafter the “EULA”),
- 3.3.3
run the Software and log into the Account of the Customer via dialog window in the Software.
3.4
The terms of use of the Software are governed by the EULA. The EULA becomes a legally binding agreement between the Provider and Customer once the Customer consents to the EULA.
3.5
The Provider undertakes to make reasonable effort to make the Software functional and secure. However, the Customer acknowledges that the Provider provides the Software “as is” and does not provide any explicit or implied guarantees regarding the Software, its fitness for certain purpose, functionality, security, or its outputs. The Customer is solely responsible for installation and operation of the Software and its use.
3.6
The Provider may update or upgrade the Software and/or its content and functions at any time even without prior notice. The Provider however undertakes not to modify the Software to the extent that would substantively alter the essential functions of the Software. These Terms and Conditions also apply to the updated and/or upgraded Software. All updates and upgrades become an integral part of the Software. The Provider may designate any update or upgrade as mandatory; the Customer is obliged to download and install such update or upgrade within the deadline specified by the Provider, otherwise the Customer acknowledges the Software may become non-functional and/or insecure.
4. Subscriptions, Orders, Trial Period
4.1
Via the Account, the Customer may order any of the currently available paid subscriptions to the Software (hereinafter the “Subscription”), based on which the Customer will be entitled to use the Software in scope and under conditions defined for the given Subscription. The list of currently available Subscriptions is available at instagto.com/#pricing. The presentation of Subscriptions on the InstaGTO Website is informative, and the Provider is not obliged to conclude an Order regarding the presented Subscription; provisions of Section 1732 (2) of the Civil Code shall not apply.
4.2
To the newly registered Customers, the Provider offers a time-limited trial period Subscription allowing the Customer to try the Software free of any charge (hereinafter the “Trial Period”). The Trial Period may be ordered via the InstaGTO Website. Each Customer may use the Trial Period only once. The Customer acknowledges that during the Trial Period, some functionalities of the Software may be limited or unavailable. The length of the Trial Period is 5 days. The Trial Period commences once the Customer downloads the Software from the InstaGTO Website, installs and starts the Software in compliance with these Terms and Conditions and EULA and logs in with their Account for the first time.
4.3
The contract regarding specific Subscription is concluded on the basis of the Customer’s order placed via the order form on the InstaGTO Website (hereinafter the “Order”). The Customer must provide all data marked as mandatory to the order form; otherwise, the Order cannot be completed. The order form contains in particular:
- 4.3.1
information about the Subscription ordered and the quantity (the Customer selects the Subscriptions by placing them in the “shopping cart” on the InstaGTO Website),
- 4.3.2
information about price of the Subscription and all applicable taxes and other fees and costs,
- 4.3.3
identification information of the Customer,
- 4.3.4
chosen method of payment, including any charges associated with that method of payment.
4.4
Provisions of paragraph 2.5 apply analogously to the order form.
4.5
The Customer shall send the Order to the Provider by clicking on the “Place Order” button. By submitting the Order, the Buyer confirms that they agree with these Terms and Conditions and have read the Privacy Policy.
4.6
The Provider shall confirm receipt of the Order to the Customer by e-mail to the Customer’s address specified in the Order, without undue delay after its receipt.
4.7
The Order of the Subscription becomes a legally binding agreement once:
- 4.7.1
he Customer has duly paid the full price for the Subscription in accordance with the Order; and
- 4.7.2
the Provider has delivered to the Customer a confirmation of receipt of the Order (acceptance) and receipt of payment for the Subscription in the Order, to the Customer’s email address specified in the Order.
4.8
In case the Customer does not pay the price of the Subscription duly even within 14 (fourteen) days from the day the Order was placed, the Order shall be cancelled.
4.9
Based on the binding Order, the Provider will provide the Customer with the access to the Software in scope defined by the ordered Subscription without undue delay, no later than 3 (three) business days from the day of conclusion of the Order.
4.10
The Provider will not refund the Customer in any way in case the Customer does not use the Subscription, which was duly made available by the Provider, for any reason.
4.11
The Customer, who is a Consumer, agrees that the Subscription will be supplied without any tangible medium and before the time limit for withdrawal from the Order in accordance with Section 1829 of the Civil Code expires. The Customer acknowledges that they will thereby lose their right of withdrawal from the Order within 14 days from supply of the Subscription.
5. Subscription Price and Payments
5.1
The currently applicable price list for the Subscriptions is available at instagto.com/#pricing. The prices remain valid for as long as they are displayed on InstaGTO Website. All the prices are displayed already including all applicable taxes (especially VAT), fees or other similar costs, unless explicitly stated otherwise.
5.2
The Customer shall pay the price of the Subscription and any associated taxes, fees, and costs to the Provider by one of the payment options offered at the given time in the order form.
5.3
Unless otherwise stated on the InstaGTO Website in the order form, the price of the Subscription already includes all costs arising in relation to delivery of the Subscription to the Customer.
5.4
In the case of non-cash payment, the Customer’s obligation to pay the price of the Subscription is fulfilled once the relevant amount is credited to the Provider’s account. The Provider shall confirm to the Customer by e-mail without undue delay that the price has been paid.
5.5
Unless otherwise stated in the order form, payments are processed in Czech Crowns. Any conversion fees shall be borne by the Customer.
6. Consumer Provisions
6.1
The Customer, who is a Consumer, acknowledges that they do not have the right to withdraw from the Contract and/or Order within 14 (fourteen) days from the date of conclusion of the Contract and supply of the Subscription based on the Order respectively in accordance with Section 1829 of the Civil Code, as it is not possible to withdraw from a contract for the supply of digital content which is not supplied on a tangible medium if it was supplied with the prior express consent of the Customer before the time limit for withdrawal and the Provider informed the Customer before concluding the contract that they shall thereby lose their right of withdrawal.
6.2
In case the performance of the Contract and/or Order of the Provider provided for consideration is faulty (i.e., does not correspond to the Contract and/or Order), the Customer – Consumer may claim rights arising from a faulty performance in accordance with Section § 1914 and subsequent of the Civil Code. The Customer may claim:
- 6.2.1
repair or replacement of the faulty performance,
- 6.2.2
discount from the price of Subscription,
- 6.2.3
withdrawal from the Order and refund for the paid Subscription.
The Customer will claim the rights from faulty performance via contact information stated in Article 8 of these Terms and Conditions.
6.3
The Provider is not bound by any codes of conduct within the meaning of Section 1826 (1) (e) of the Civil Code in relation to the Customer who is a Consumer.
6.4
The Customer agrees to the use of means of remote communication in concluding and fulfilling the Contract. Costs incurred by the Customer in using remote communication means (in particular costs of internet connection) shall be borne by the Customer, and such costs shall not differ from the basic rate of the respective communication service providers.
6.5
The Contract may be concluded in English. Concluded Contracts are archived by the Provider in electronic form. The Customer shall be provided with an e-mail confirmation of the conclusion of the Contract in accordance with these Terms and Conditions.
6.6
In the event that a consumer dispute arises between the Customer, who is a Consumer, and the Provider in connection with the Contract or Order and if such dispute cannot be resolved by an amicable settlement, the Customer – Consumer may apply for an out-of-court dispute resolution with the designated body appointed by the Czech law to settle consumer disputes, which is: Czech Trade Inspection Authority (Česká obchodní inspekce), Central Inspectorate (Ústřední inspektorát) – ADR Department, address: Štěpánská 15 120 00 Prague 2, website: www.coi.cz. The online dispute resolution application at http://ec.europa.eu/consumers/odr can also be used for out-of-court dispute resolution. Contact point pursuant to Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online consumer dispute resolution and amending Regulation (EC) No 2006/2004 and Directive 2009/22 / EC, is the European Consumer Centre Czech Republic, with its registered office at Štěpánská 567/15, 120 00 Prague 2, website: http://www.evropskyspotrebitel.cz.
7. Use and Operation of the Instago Website and Account
7.1
The InstaGTO Website and the Account, including its content and the software ensuring its operation, are intangible assets protected by law, primarily as copyright works within the meaning of Act No. 121/2000 Coll., on Copyright, on Rights Related to Copyright and on Amendments to Certain Acts (Copyright Act), as amended, or as other intangible assets protected by law.
7.2
The Customer shall use the InstaGTO Website, the Account, and other protected assets contained therein only for the time, for the purposes, to the extent and in the manner necessary to use them in accordance with these Terms and Conditions (e.g., to register and set up an Account and order and pay for the Subscriptions in accordance with the Terms and Conditions). The Customer is not entitled to use the InstaGTO Website, the Account or its content in particular for commercial purposes (whether for their own benefit or for the benefit of a third party). The Customer is not entitled to grant any sub-licenses to third parties or to assign the license to a third party. The Customer may not interfere in any way with the InstaGTO Website, the Account or its contents, modify it, decompile it, combine it with another work or include it in a collective work.
7.3
The Provider shall make reasonable effort to make the InstaGTO Website and the Account available and functional. However, the Customer acknowledges that the InstaGTO Website and the Account might not be available continuously, in particular with regard to the necessary maintenance of the hardware and software of the Provider or third parties; in the event of its unavailability or non-functionality, the Provider shall not be entitled to any claims for faulty performance or damages.
8. Liability
8.1
In case the Provider is unable to fulfil the Contract and/or Order properly and in timely manner due to force majeure (meaning an extraordinary unforeseeable and insurmountable obstacle arising independently of the Provider’s will), the Provider shall inform the Customer thereof without undue delay. All time limits for the Provider’s performance shall be extended by the length of the period during which the force majeure event lasted. Provisions of Section 2913 of the Civil Code are not affected.
8.2
The Customer waives all claims arising from defective performance related with the use of the Software, to the maximum extent permitted by the Czech law. To the maximum extent permitted by the Czech law, the Provider shall not be liable for any damage incurred by the Customer in connection with the use of the Software. In particular, the Provider is not obliged to compensate the Customer for any damage caused by:
- 8.2.1
impossibility to use the Account or Software or its functions,
- 8.2.2
amendments of these Terms and Conditions;
- 8.2.3
loss, theft, disclosure or misuse of login information of the Customer;
- 8.2.4
use of the Account or Software in violation of these Terms and Conditions or legal order;
- 8.2.5
as a result of using a service or product provided by a third party;
- 8.2.6
independently of the will of the Provider.
8.3 The Provider is not obliged to provide any compensation for any damage incurred as a result of a breach of Customer’s obligations or if any of the Customer’s declarations under these Terms and Conditions proves to be incomplete or false. The Customer agrees to fully compensate the Provider and to remedy any negative consequences of such false or incomplete statements.
9. Support
9.1
The Customer is entitled to contact the Provider regarding the functionality of the Account or Software, especially in cases where the Account and/or Software is not functioning properly, via e-mail: info@instagto.com or chat available on the InstaGTO Website. The Provider will inform the Customer about the outcome of the resolution of the inquiry via e-mail.
10. Duration and Termination of the Contract and Orders
10.1
The Contract is concluded for an indefinite term.
10.2
The Customer is entitled to terminate the Contract at any time by cancelling the Account. In such case, the Contract as well as all concluded Orders are terminated; the Customer does not have right to a refund of the already paid Subscriptions.
10.3
The Provider may terminate the Contract by cancelling the Account of the Customer:
- 10.3.1
in case the Customer breaches their obligations under the Contract and/or Order. In such case, the Contract as well as all concluded Orders are terminated. The Provider will inform the Customer about the Account cancellation via e-mail. The Provider will refund the Customer for the remaining part of Subscriptions already paid, which the Customer has not used, or
- 10.3.2
in case the Customer has not logged in the Account for at least 1 (one) year and no Orders are currently concluded and effective under the Account.
10.4
The Order is concluded for the term of duration of the Subscription.
10.5
The Customer may withdraw from the Order in case the Provider fails to make available to the Customer the duly ordered and paid Subscription even after the Customer notified the Provider about delay with making the Subscription available in writing and provided the Provider with an additional time limit not shorter than 5 (five) working days to make the Subscription available. In such case, the Order ceases to exist from the beginning and the Customer will be refunded for the paid price of the Subscription.
10.6
Upon termination of the Contract, all the rights of the Customer to use the Account and the Software granted by the Provider (including the EULA) also terminate. The Customer is obliged to cease any further use of the Account and Software and delete the Software from all their devices on the day following the day of Contract termination at the latest. In case of delay, the Customer is obliged to pay the Provider a contractual penalty of CZK 2,000 (two thousand Czech Crowns) for each commenced day of delay. Right to damages is not affected.
11. Change of Terms and Conditions
11.1
The Provider may amend or change these Terms and Conditions at any time. This amendment and/or change will be sent to the Customer to the contact e-mail address specified in the Account. As of the effective date of the new version of the Terms and Conditions, the previous Terms and Conditions shall cease to be effective. By continuing with the use of the Account after the date the new version of the Terms and Conditions became effective, the Customer expresses their consent with the new version of the Terms and Conditions. If the Customer disagrees with the amendment of the Terms and Conditions, they must terminate the Contract by cancelling their Account before the effective date of the new version of the Terms and Conditions at the latest.
12. Personal Data Protection
12.1
Information on how Customer’s personal data are processed by the Provider is provided in the document “Privacy Policy”, which is available on the InstaGTO Website.
13. Mutual Communication
13.1
All communication between the Customer and the Provider relating to these Terms and Conditions or to be made based on them must be made in writing and delivered to the other party. The written form requirement is met even if the notification is made electronically via the Account or via the following e-mail addresses:
- 13.1.1
The Provider: e-mail: info@instagto.com, delivery address: Palackého 629/9, 779 00 Olomouc.
- 13.1.2
The Customer: e-mail addresses stated in the Account.
13.2
The Customer and the Provider undertake to notify the other party of any change in their contact details within three (3) business days at the latest. A Customer who has an Account will do so by updating their contact information in the Account.
14. Common and Final Provisions
14.1
These Terms and Conditions, Contract, Orders and rights and obligations arising from them are governed by the law of the Czech Republic. The Customer and the Provider hereby submit to the exclusive jurisdiction of the courts of the Czech Republic, namely District Court in Prague 1 (Obvodní soud pro Prahu 1) in cases a district court has jurisdiction as first-instance court, and Municipal Court in Prague (Městský soud v Praze) in cases a regional court has jurisdiction as first-instance court, all in accordance with the procedural law of the Czech Republic, unless such agreement of the parties on jurisdiction is excluded by applicable legal regulation.
14.2
If any provision of these Terms and Conditions is or becomes invalid or ineffective, a provision meaning of which is as close as possible to the invalid provision shall replace the invalid provision. The invalidity or ineffectiveness of one provision shall not affect the validity of the remaining provisions of the Terms and Conditions.
14.3
The Customer agrees that the Provider has the right to assign the Contract, Order, or a part thereof to a third party. Customer may not transfer, assign, pledge or otherwise encumber its claims against the Provider without the prior written consent of the Provider.
14.4
These Terms and Conditions come into effect on 30.12.2021.
