GENERAL BUSINESS TERMS AND CONDITIONS for provision of security services

DEFINITIONS

Framework agreement” ("hereinafter referred to as the Framework Agreement or the Agreement or the Contract ") means a contract for the provision of security services concluded between Xsec Ltd. and the Customer and is governed by the valid legislation of the Czech Republic and these General Terms and Conditions for the provision of security services (hereinafter referred to as the "Terms and Conditions or GTC"); The contract includes all its annexes or documents attached to the contract and these GTC.

​"Services order" is a document by which the customer orders from Xsec Ltd. specific service/services under pre-mutually agreed and set conditions specified in the Framework Agreement on the basis of the specific prices of the required service/services currently agreed by the Services Order. The order must be approved in advance by a person authorized to represent the party/customer (eg. by email) before the actual start of the provision of service/services. Otherwise, Xsec Ltd. reserves the right not to provide the service/services until the approval of the Services oder by a person authorized to represent the customer.

"Customer" means the customer specified in the Framework Agreement.

"Effective Date" means the effective date of the Agreement as set forth in the Agreement. ​

"In writing" or "written document" includes all written communications signed by a person authorized to represent the party, including (but not limited to) printed documents, faxes, e-mails and other electronic means of communication.

Damages” means damages specified by applicable laws, including (but not limited to) any and all claims, losses, responsibilities, damages, lawsuits, fines, fees, requirements, costs and expenses, professional service fees (including, but not limited to) all reasonable costs of legal representation) and expenses and costs of investigations, litigation, settlement, judgment, interest and fines incurred by the contracting party in connection with the provision of services under the Framework Agreement.

Sanctions” means economic or financial sanctions or trade embargoes or other equivalent restrictive measures imposed, maintained or enforced by the European Union, the governments of the other Member States of the European Union, the United Nations Security Council, the US Government or the equivalent regulatory body of any other country which is/are essential for this Agreement.

​“Sanctions list” means any list of specifically defined nationals or designated persons or entities (or their equivalent) in relation to sanctions, which is subject to periodic updating in the form of additions.

Service Fee” means the fee charged by Xsec Ltd. to the Customer for the provision of services within the scope of the subject of services specified in the Services order and remuneration for any additional services (additional work) agreed between the contracting parties. Remuneration may be changed in accordance with the terms and conditions.

Services” means the services to be provided by Xsec Ltd. on the basis of the Services Order as defined in the given document.

Xsec” means the company Xsec Ltd. with its registered office in Lidická 700/19, 602 00 Brno, VAT No .: CZ09310622, Company Identification Number: 09310622, file number C118386, kept at the Regional Court in Brno.

Provision services place/s” means the territory, locations or premises in which the Services are to be provided in accordance with the Customer’s Services Order agreed by the Customer.

Business Days” means a day on which banks in the Czech Republic are normally open for the provision of banking services.

 

1 START OF SERVICE PROVISION AND DURATION

1.1 Commencement of services. The Agreement based on the Services Order will be performed from the date of entry into force and will be effective until terminated by agreement of the parties or unilaterally by either party. If it has been agreed in the Agreement / Services order that the contract is concluded for a definite period, then its effectiveness expires at the end of the agreed period. Where necessary for the provision of certain services before the effective date, this Agreement will apply to these services.

2 SCOPE AND PERFORMANCE OF SERVICES

2.1 Services and facilities. Xsec agrees to provide services to the Customer in accordance with the specific conditions set out in the Agreement / Services order. All equipment, logistics, tools, software, data, materials and / or documentation provided by Xsec shall remain the exclusive property of Xsec within the meaning of Article 14.2, unless otherwise agreed in writing by the parties.

2.2 Instructions given by the customer. Xsec is not obliged to follow any customer instructions other than those stated in the Agreement. If the customer issues instructions outside the scope of the Agreement / Services order that change or affect the performance of the services, the customer is solely responsible for all consequences arising from these instructions and will compensate and protect Xsec in this regard.

2.3 Service changes requirements. In accordance with these terms and conditions, each party may request reasonable modifications and / or additions to the scope of services by written submission to the other party. If in Xsec's opinion, these adjustments and/or additions require an adjustment of the service fee or this GTC, Xsec will notify the Customer of such required adjustments to the service fee or terms of this agreement. The parties will discuss in good faith any required adjustments and / or additions to the scope of services, remuneration for services, or these GTC. For the binding nature of any changes to the scope of services, remuneration for services and / or these GTC for the contracting parties, all modifications and / or additions must be agreed in writing by an authorized representative of the respective contracting party. The Services, the Service Fee and these GTC remain unchanged until an agreement is reached. For the avoidance of doubt, Xsec employees providing services are not authorized to negotiate modifications and / or additions to the scope of services. Xsec is entitled to amend the contract in order to comply with the decisions and regulations of public authorities, regulations, directives and other laws applicable to the services to be provided under the Agreement. Such amendments shall be deemed to have been accepted by the customer unless they are expressly objected to in writing within 15 working days of their notification. In the event of an objection, Xsec is entitled to terminate this Agreement with a due cause in accordance with Article 11.1. In the case of negotiating the Agreement, the services must be provided and paid for as in the unchanged contract.

2.4 Workers. Service personnel are employees of Xsec or employees of subcontractors hired by Xsec. Xsec reserves the right to replace service personnel at any time. The Customer may request a change of Xsec personnel, but Xsec will, in its sole discretion, determine any action to be taken on such request. Customer requests for staff exchanges must be made in writing, stating the reason for the requested change.

2.5 Subcontractors. Xsec may use the subcontractor to provide some or all of the Services. Xsec is responsible for these subcontractors to the same extent as it is liable under the Agreement itself.

2.6 Limited liability for the result. Xsec does not guarantee the operation or result of the services, nor does it assume overall responsibility for safety at the customer's place (s) of performance. Unless otherwise agreed in this Agreement, Xsec is not the customer's security adviser. Xsec makes no representations or warranties, express or implied, that its services will prevent any or all damages.

3 CUSTOMER OBLIGATIONS

3.1 Interoperability. The Customer will always work with Xsec to enable Xsec to provide the Services under the best possible conditions. This means in particular (but not exclusively) the following obligations: the customer provides (i) in terms of occupational safety and health a safe and healthy working environment for Xsec employees in accordance with applicable law, (ii) all relevant information, materials, access and assistance that Xsec reasonably requires for the uninterrupted performance of services, including (but not limited to) access to the place (s) of performance, provision of suitable premises and energy supplies reasonably required, and (iii) promptly notify Xsec of anything that may affect health; the safety of Xsec's place of performance or personnel, the risks or performance of Xsec's obligations under the contract, or which are likely to increase Xsec's costs in providing services.

3.2 Completeness and accuracy of the Agreement. The Customer is responsible for ensuring the completeness and accuracy of the Agreement.

3.3 Licenses, permits, consents or visas. The Customer shall obtain and maintain the validity of all necessary licenses, permits, visas and consents required prior to the commencement of services.

3.4 Maintenance of Xsec materials. Customer will retain all Xsec materials, equipment, tools, documents and other property ("Xsec Materials") at the place/places of performance in safe storage and at its own risk, will maintain Xsec Materials in good condition until returned to Xsec, and will not dispose of or use Xsec materials other than in accordance with Xsec's written instructions or authorization.

3.5 Customer's equipment, including (but not limited to) means of transport. In the event that Xsec employees have the obligation or right to use in the performance of work or in connection with it certain equipment (means of transport) owned (or in authorized use) by the customer, and this equipment is subject to regular inspection or inspections, responsible for proper and timely performing revisions and inspections is the customer, who will ensure their implementation at his own expense. The customer undertakes to provide Xsec with a copy of the relevant revision (inspection) report immediately after their proper performance of revisions or inspections. Customer acknowledges that Xsec employees will not be required to operate equipment for which Customer's above obligations have not been met, and such refusal to use the thing will not be a breach of Xsec's contractual obligation.

3.6 Commencement of Services. Xsec is not obligated to start providing services before the customer provides the necessary cooperation. In the event that the Services Order is not approved by the authorized person of the customer even due to time constraints and unavailability of the customer's authorized person and Xsec nevertheless starts providing services, the provision of services is governed by the Services Order proposal (scope required by the customer and price of services) submitted to the customer by Xsec.

4 EMPLOYEES TRANSFER

4.1 Employees transfer. The Contracting Parties state that neither the commencement of the provision of the Services nor the termination of the provision of the Services results in the transfer of employees, respectively to transfer rights and obligations from an employment relationship, as neither the commencement nor termination of the provision of Services is a transfer of the employer's activity or part of the employer's activity or the transfer of the employer's tasks or part thereof to another employer; exclusively in writing signed by authorized representatives of the Contracting Parties. If, in spite of the above, the employees of the Customer or a third party are transferred to Xsec or the employees of Xsec to the Customer or a third party, the Customer

a) protect and indemnify Xsec against all claims of employees (whether the Customer or another employer) arising from the transfer of rights and obligations from their employment relationship to Xsec in connection with the commencement of the provision of Services;

b) protect and indemnify Xsec against losses incurred by Xsec as a result of the loss of Xsec's own employees in connection with their transfer to the Customer or to a third party. Xsec does not bear any responsibility towards the Customer or third parties in connection with a possible transfer of employees.

5 CUSTOMER COMMITMENTS

5.1 Sanctioned ownership. The customer declares and guarantees that he is not a person on the list, or owned (directly or indirectly) or controlled by a person on the sanction list. For the purpose of Article 5.1, "ownership" and control "shall have the meaning assigned to them in the relevant sanctions or in any other official directive relating to those sanctions.

5.2 Sanctioned activities. The customer declares and warrants that, without prior authorization granted by the competent authority (where authorization is required), he will not participate, directly or indirectly, in any activities covered by the prohibition in the relevant sanctions.

6 REMUNERATION FOR SERVICES

6.1 Remuneration for services. The Customer shall pay Xsec a fee for the provision of services in the amount and in the manner specified in the Agreement/ Services order.

6.2 Adjustments to Remuneration for Services. Xsec is entitled to adjust the remuneration for services during the term of this Agreement upon 7 days' written notice to Customer in the event of an increase in Xsec's service costs due to (i) an increase in staff costs or transportation, logistics, equipment and instruments, (ii) changes in premiums, and / or (iii) changes in service legislation. Xsec is also entitled to unilaterally adjust the amount of remuneration for services once a year, always by a percentage expression of the average inflation rate in the Czech Republic for the past calendar year, published by the Czech Statistical Office, starting in the month following its publication. Xsec will notify the customer of the price change in writing in advance.

6.3 Value added tax (VAT) and other taxes. The amounts to be paid under the contract do not include VAT or any other applicable taxes or fees that are payable in addition to the said service fee.

 

7 PAYMENT TERMS

7.1 Payment of Remuneration for Services. The customer will be charged for the services either after the delivery of the work/termination of the provision of services or monthly, always after the end of the relevant calendar month. Invoices have a fourteen (14) daily maturity calculated from the date of issue of the invoice, without any credit, counterclaim, discount or deduction. By signing the Agreement, the customer agrees that Xsec issues and sends invoices - tax documents in electronic form by e-mail in the sense and provided that the conditions specified in Section 26 of Act No. 235/2004, Coll., On Value Added Tax, as amended, and other provisions of this Act. Xsec sends electronic invoices to the customer's e-mail address specified in the Agreement. If electronic invoicing is not used, the invoices will be sent to the customer's delivery address specified in the Agreement. Failure to make any payment or part thereof by the customer on the due date is considered a significant breach of Agreement by the customer. A contractual penalty of 0.05% of the amount due for each day of delay will be charged for the amount not paid within thirty (30) days from the date of issue of the invoice. Payment of the contractual penalty does not affect the right to compensation in full, even in excess of the contractual penalty, nor the right to statutory interest on arrears. The Customer shall notify Xsec of any discrepancy regarding the invoiced amount in writing within fourteen (14) days from the date of issue of the invoice, otherwise, it shall be deemed to accept the invoice without reservation. The customer bears all costs associated with the delivery of payments charged for services provided under the Agreement. If Xsec is obliged to initiate the judicial or extrajudicial recovery of the amount due under the Agreement, the customer agrees to reimburse the costs of legal representation of the company and all other costs incurred in connection with the recovery.

7.2 Interruption of Services. In the event of a delay in payment by the customer, Xsec is entitled to suspend the performance of services under this contract on the basis of a written notice sent to the customer at least five (5) days in advance. Xsec is not liable for any damage incurred by the customer as a result of or at the time of the interruption of services. Interruption of services does not release the customer from the obligation to fulfil all his obligations under the Agreement/ Services order.

7.3 Immediate cash payment. In the event of non-payment by the customer within the due date, Xsec is entitled to make the continuation of services conditional on the immediate payment of remuneration for services that have already been provided (regardless of whether they have been invoiced) and / or for services to be provided.

8 LIMITATION OF LIABILITY

8.1 Liability for damage. Xsec's liability for damages incurred by Customer and any other liability of Xsec under the Agreement are limited to the provisions of Article 8. Customer agrees that the service fee is an expression of Xsec's risk assessment based on Customer's information and further agrees the conclusion of the Agreement is conditioned by the fact that Xsec's liability in this contract is limited in accordance with the provisions set out herein.

8.2 Limitation of indirect and consequential damages. Xsec is in no way responsible for:

any loss of actual or projected profit; criminal damages; any indirect or consequential damages; purely financial loss, loss of income, loss of goodwill; loss of business opportunities or revenue, all foreseeable or unpredictable, even if Xsec has been notified of the possibility of such losses or damages. Nothing in this Agreement excludes or in any way limits Xsec's liability to the extent that such liability cannot be excluded or limited by applicable law.

8.3 Maximum extent of damages and liability. If the maximum amount of damages and liability of Xsec is not stipulated in the Agreement, the obligation of Xsec to compensate the customer under the Agreement shall not exceed the total amount of CZK 200,000. The total amount of damages that Xsec is obliged to pay to the customer is limited by the amount stated above, and by signing the Agreement the contracting parties confirm that they do not expect higher damages to occur.

8.4 Claims Notification for Damage Liability. Customer will notify Xsec of any claims arising out of or against Xsec's provision of services, providing the necessary details in writing within thirty (30) days from the date Customer discovers (or should have exercised) due diligence the event giving rise to such claim; If Customer does not notify Xsec within six (6) months of the occurrence of the Event, Xsec shall not be obligated to provide any compensation for such claim.

9 THIRD-PARTY CLAIMS

9.1 Indemnification. Customer will indemnify and hold Xsec against any claims, damages or losses that Xsec may suffer or that may be brought against Xsec by any third party as a result of or in connection with the performance of the Services under this Agreement unless such damages arise as a result of a culpable breach of duty. on the side of Xsec, its employees or subcontractors.

10 INSURANCE

10.1 Insurance. For the duration of the Agreement, Xsec will take out insurance corresponding to the extent of liability for damage accepted by Xsec under the contract, in the amounts and under the terms agreed by Xsec at its discretion. The liability insurance arranged by Xsec does not cover damages caused by acts or omissions on the side of the customer. Based on a written request from the customer, Xsec will provide the customer with a confirmation of the existence of insurance agreed in accordance with the above principles.

11 TERMINATION OF THE AGREEMENT

11.1 Without giving reasons and for a serious reason. Either party is entitled to terminate the Agreement without giving a reason or penalty by giving one month's written notice to the other party in advance, in which case the notice period begins on the first day of the month following delivery. Either party is also entitled to terminate this Agreement by giving at least ten (10) days written notice to the other party if:

• the other party commits a serious infringement;

• there is a change in applicable laws or regulations that have a significant effect or result in a significant change in Xsec's obligations under this Agreement, or • the other party is insolvent.

11.2 Consequences of termination. In the event of termination of the Agreement under Article 11, the customer is responsible for payment of all services provided up to the date of its termination under this Agreement / Services order.

11.3 Consequences of serious infringement. In the event of termination of this Agreement due to a serious breach of this Agreement on the part of the Customer, Xsec Customer shall indemnify all damages incurred as a result of such breach.

11.4 Sanctions. If Xsec's performance under the Framework Agreement / Services Order becomes illegal or contrary to Xsec's sanctions, applicable laws, government regulations or sanctions regulations, or if the customer or its direct or indirect owner is on the sanctions list :

(a) Xsec will, in its sole discretion, be entitled to immediately cease to perform its obligations under the Agreement and / or to terminate the Agreement; and

b) the customer agrees that Xsec will not be liable to the customer for any damages (including any consequential damages), damage or delay as a result of Xsec's cessation of its obligations and / or termination of the Agreement.

11.5 Release from the performance. Upon termination of the Agreement, Xsec will be exempt from any further performance under the contract and will be entitled to enter the place (s) of performance and recover the means of transport, logistical material, equipment, tools, materials, data, software and / or documents including (but not limited to) recovery and / or destruction of electronic documents and data belonging to Xsec.

11.6 Negligence on the part of the customer. If Customer negligently or fails to cause damage to Xsec, Xsec will be entitled to terminate the Agreement with immediate effect and Customer will protect Xsec from any property, financial, and / or personal loss caused by such negligence.

12 PERFORMANCE IMPOSSIBILITY

12.1 Force majeure. The following shall be deemed impossible to perform if it causes a delay or inability to provide services: any facts beyond the objective control of the Contracting Party, in particular fire or another natural disaster, state of war, emergency, declared national or local quarantine, viral or other pandemic diseases of a lower level or mobilization or a military summons of comparable scope, decisions to seize or seize property, monetary restrictions, riots and civil unrest, kidnapping or terrorist acts, epidemics, pandemics, blackouts, general supply disruptions or general shortages of workers, strikes or other industrial disputes, and breaches or delays in performance by subcontractors caused by any of the facts referred to in this Article.

12.2 Notification. The contracting party intending to invoke the impossibility of performance within the meaning of Article 12.1 is obliged to immediately inform the other contracting party of the occurrence and termination of such a circumstance.

12.3 Performance impossibility on the customer’s side. If the reasons for the impossibility of performance make it impossible for the customer to fulfil his obligation, the customer shall reimburse Xsec for the costs incurred in connection with the performance of the ordered services. The customer will also reimburse Xsec for personnel, transportation, logistics and equipment costs, subcontractor tools that are prepared (held on standby) for the resumption of services with the customer's consent.

12.4 Termination of the state of performance impossibility. Notwithstanding any other provision of this Agreement, the party shall be entitled to terminate this agreement and provide the ordered services with immediate effect by giving written notice to the other party if performance is impossible for more than thirty (30) days due to impossibility of performance under Article 12.1.

 

13 CONFIDENTIALITY AND DATA PROTECTION

13.1 Confidential Information. The parties will maintain the confidentiality and will not disclose any confidential information about the other party communicated to it in connection with the Agreement / Services order, except as necessary for the purpose of providing services and performing any other obligations under the Agreement. Information shall be considered confidential if it has been designated as confidential by the communicating party at the time it is communicated or if, in all circumstances, it should be treated as confidential by the receiving party. No Contracting Party shall be bound by the obligation of professional secrecy with regard to information which:

(i) are or subsequently become publicly available without breach of any obligation under the contract; (ii) were in the possession of the other party before they were first communicated under the Agreement;  (iii) are prepared by the other Party without any use or reference to any confidential information received from the notifying Party; (iv) are obtained from a third party who, for reasonable reasons, considers that he is not bound by the obligation of professional secrecy with the Contracting Party concerned in providing this information; (v) are declassified with the prior written consent of the communicating party; or (vi) are declassified in accordance with a decision or request of a court, public authority or other administrative authority.

13.2 Data protection. The Contracting Parties acknowledge that the proper performance of the services specified in the Agreement may require the acquaintance and handling of personal data of the other Contracting Party or its employees, subcontractors or cooperating persons. Both parties agree to use all personal data obtained in the performance of this Agreement properly, in compliance with all applicable regulations and rules, and to use this information exclusively for the purpose of fulfilling their obligations under the Agreement / Services order. In fulfilling its obligation to the customer under this Agreement, Xsec will act as a data processing entity with respect to the processing of personal data by it. Xsec will therefore follow the customer's instructions regarding the processing of personal data and will take the measures necessary for the secure storage and processing of this data according to the customer's requirements.

14 INTELLECTUAL PROPERTY RIGHTS

14.1 Customer’s Consent. Customer acknowledges and agrees that no transfer or acquisition of Xsec's intellectual property rights will be made under this Agreement.

14.2 Equipment Exclusive Ownership. Unless otherwise agreed with the customer, Xsec is the sole owner of all hardware and other equipment, tools and related software and documentation to be installed at the place of performance for the provision of services during the performance of the Agreement. The customer is not entitled to use or enjoy the benefits of these installations or rights after the termination/expiration of the Agreement.

14.3 Data. Without prejudice to Section 13.2 (DATA PROTECTION), all worldwide copyrights, right to databases and all other rights to any data or other information that Xsec has collected or has collected for itself or the customer during the provision of services belong exclusively to Xsec and Customer will sign these documents upon Xsec's reasonable request to grant these rights to Xsec.

14.4 Trademarks. Xsec is the sole owner of all trademarks, product names, and other brand names used for or in connection with the Services. The customer is not granted the rights to use such trademarks, product names or other brand names.

 

15 PROHIBITION OF EMPLOYEES TAKEOVER

15.1 Prohibition of Employees takeover. Customer agrees not to employ, directly or indirectly, during the term of the Agreement and for a period of twelve (12) months thereafter, without the express written consent of Xsec, any person employed or previously employed by or cooperating with Xsec who is or has been involved in the provision of services under mutual Agreement. In the event of a breach of this obligation, the customer will pay Xsec an amount of CZK 100,000 for each person employed by the customer in this way to reimburse the costs incurred by Xsec for the recruitment and training of this employee. The parties acknowledge that this amount is reasonable, and this is a cost related to the relevant loss of an Xsec employee, not a contractual penalty.

16 OTHER ARRANGEMENTS

16.1 Independence. Xsec is an independent vendor. Nothing in this Agreement establishes a partnership or relationship between the principal and the agent or the employer and the employee.

16.2 Separability. In the event that any provision of this Agreement is or becomes unenforceable or invalid, it will be modified to be enforceable (valid) to the maximum extent permitted by Czech law, while all other provisions of the Agreement remain fully valid and enforceable. If it is not possible to modify the unenforceable/invalid provision, it will be excluded from the Agreement, while all other provisions of the Contract remain in force.

16.3 Discrepancies in Documents. In the event of a conflict between the documents forming part of the Contract, the documents shall prevail in the following order: (i) the Agreement/Contract; (ii) ordering services; (iii) these conditions; and (iv) any other documents attached to this Agreement.

16.4 Notices. All notices delivered under the Contract will be made in writing and delivered to the other party by courier, email or data box, registered mail with a delivery note, addressed to the other party to the address specified in the Agreement or to another address subsequently communicated in writing. All notifications sent in this way will be deemed to have been received as follows:

(i) on personal delivery, on the day of delivery,

(ii) on delivery by courier, on delivery,

(iii) when sent by registered mail, three (3) business days after dispatch by mail, and

(iv) when sent by email or data box, on the day of sending

16.5 Assignment. Neither party will transfer the Contract as a whole to a third party without the written consent of the other party, and the consent will not be unreasonably withheld.

16.6 Full Contract. The Agreement establishes the full agreement of the parties and supersedes all prior agreements and correspondence between Xsec and the Customer, whether oral or written. No statements, promises or agreements not included in the Contract will be enforceable.

Changes and amendments. All changes and amendments to the Agreement, or any part thereof, are binding on any party only with the written approval of an authorized representative of that party.

16.7 Arrangements for Continuing Termination. The Contract will be terminated upon expiration or other termination in accordance with its terms. Arrangements which, according to their wording, have effect after the termination of the Contract shall continue to be binding and effective for the parties.

17 APPLICABLE LAW AND JURISDICTION

17.1 Law and Dispute Resolution. The Contract is governed by and construed exclusively in accordance with the law of the Czech Republic, without the application of laws rules conflict of the Czech legal system. The contracting parties hereby submit to the exclusive jurisdiction of the courts of the Czech Republic. All conditions stated in mutual Contract shall apply only to the extent permitted by Czech law. Pursuant to Section 89a of Act No. 99/1963 Coll., The Code of Civil Procedure, the contracting parties have agreed on local jurisdiction for all disputes arising out of or in connection with the Contract, so that the local court Xsec will always have territorial jurisdiction. However, according to Act No. 634/1992 Coll., On Consumer Protection, the competent Czech Trade Inspection Authority, with its registered office at Štěpánská 567/15, 120 00 Prague 2, is responsible for the out-of-court settlement of consumer disputes arising from contracts concluded between Xsec and customers acting as consumers. IČO: 000 20 869, internet address: http://www.coi.cz.

These General Terms and Conditions are effective from 14th July 2020.

In Brno, on 14th July 2020, Expert Security services (Xsec Ltd.)

       Mr Radek Klapuš, MPA 

          Managing Director