These General Terms of Service (“GTS”) apply to any and all Orders and to any use of Services. By placing their Order, the Customer agrees to these GTS.
QuarticOn and the Customer shall enter into an Agreement once they have signed the Order. The contents of the Agreement shall be in line with the Order and QuarticOn’s General Terms of Service, as appended thereto.
The Customer must be a business. The Customer shall make sure the subject of Services is directly associated with the purpose and range of activities carried out by the Customer.
- Definitions. These definitions shall apply to GTS, the Order and the Agreement, and any appendices thereto:
- Marketing Automation shall mean marketing services addressed to Website users, including messaging via a selected contact channel, displaying banners and pop-ups, and segmentation. The detailed range of services and features available to the Customer as part of the Marketing Automation service shall depend on the Service package chosen by the Customer;
- Price List shall mean the amounts payable by the Customer to QuarticOn in return for the Services provided by QuarticOn, as defined in Section 11 of GTS and the Order;
- Cookies shall mean the files saved on Website visitors’ devices, containing information on, and settings related to, the websites visited by users and their activity thereon;
- Personal Data shall mean information about an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- Customer Product Catalogue shall mean the database containing information about the range of products and services offered and available at the Website, providing at least the ID, URL, status and price of the product or service, and any other information specific to that product or service;
- The Customer shall identify the business which has signed the Order and thereby accepted these GTS;
- Click shall mean a click on the Recommendation Frame and/or Product Creation as registered by the System;
- Contact – a Website user which has an identified contact channel, e.g. an email address and a contact channel processed in the System for Marketing Automation purposes;
- Contact Person shall mean the natural person stated by the Customer in the Order. The role of the Contact Person is defined in Section 23 of GTS;
- QuarticOn shall mean QuarticOn S.A. whose registered office is in Warsaw, Al. Jerozolimskie 123a, 02-017 Warszawa, entered in the register of entrepreneurs kept by the District Court for the City of Warsaw, 12th Commercial Division of the National Court Register under KRS No. 0000715276, Tax Id. No. (NIP) 5213608082, share capital PLN 140,430.00, paid up in full;
- System shall mean the software to which QuarticOn has rights and which allows the provision of Service;
- Administration Panel shall mean the tool which allows the Customer to manage their Services;
- Planned Launch Date (PLD) shall mean the date stated in the Order. The Planned Launch Date is the date on which the Service will be launched, provided that the Customer has fulfilled the conditions laid down in GTS;
- Recommendation Frame shall mean a piece of information about Customer products or services, including a direct link to the relevant product’s, product list’s or service’s page, displayed or processed in the Website with an active Recommendation service. A recommendation frame is, in particular, a list of products provided by a store browser;
- Product Creation shall mean a piece of information about Customer products or services, including a direct link to the relevant product’s, product list’s or service’s website, or to the Website, displayed online outside the Website or delivered to the recipient using Marketing Automation. In particular, this shall include graphic banners;
- Recommendations shall mean the provision of information about products or services to the Customer Website to be displayed to the Website user in the Recommendation Frame according to specific rules applicable to product selection logic and the form of data transmission, as well as other related services and features; the detailed scope of features available to the Customer as part of the Recommendation service shall depend on the Service package chosen by the Customer;
- Website shall mean the websites or applications which are related to the Order and to which the Customer has rights;
- Scripts shall mean programming-language codes designed to be installed in the Website code and necessary for Service provision;
- Statistics shall mean information about web traffic collected by Scripts on a given website and/or Website;
- Transaction shall mean the purchase of any product or service by the Website user within up to 30 days from the Click on Product Creation;
- Agreement shall mean the agreement concluded between QuarticOn and the Customer following their signing of the Order;
- Services shall mean the services provided by QuarticOn. The detailed scope of features as part of the Service provided by QuarticOn shall be defined in the proposal accepted by the Customer, or in the description attached to the Order, and shall depend on the Service package chosen by the Customer;
- Post-Recommendation Purchase shall mean the purchase of a product or service, as shown in the Recommendation Frame, by the Website user within 30 days from the Click on that product or service in the Recommendation Frame;
- Order shall mean the document governed by these GTS used to place orders for QuarticOn’s services, each time including the proposal accepted by the Customer and the price list. The Order is always placed in the format defined by QuarticOn.
- Services. QuarticOn shall provide the Customer, in return for a payment, with the Services stated in the Order, including the attached proposal accepted by the Customer and the price list. The proposal shall state the Service package chosen by the Customer. QuarticOn shall have no obligation to provide Services other than specified in the proposal attached to the Order, and the Customer may not use the features which are not included in the package chosen with that proposal. QuarticOn shall commence Services on the Planned Launch Date on the condition that (i) the Customer has provided the Customer Product Catalogue within seven (7) days of signing the Order and that QuarticOn has accepted such Customer Product Catalogue; (ii) the Scripts have been properly installed on the Website; and (iii) the Customer has been granted access to the Administration Panel to manage QuarticOn’s services. Should the Customer fail to meet these conditions before the Planned Launch Date, QuarticOn shall delay Service commencement until such conditions are fulfilled by the Customer.
- Additional services. QuarticOn shall provide services for the Website. Where a redeployment is required due to (1) extensive technological and functional changes to the Website, such as changing the e-commerce platform, new Website development, new website design, or (2) the need to implement new features, e.g. new Recommendation Frames – such services shall be offered for an additional payment. In such an event QuarticOn shall provide the Customer with a commercial proposal within seven (7) working days, and shall commence services once the Customer has accepted the proposal and placed a separate order. Services shall be priced at the rate per the 1st man-hour of work commenced, as provided in the Order. Any new services deployed and provided by QuarticOn to the Customer beyond the original scope of the Order shall be charged extra in accordance with the price list or proposal, or as otherwise separately agreed by QuarticOn and the Customer. Where the changes described in (1) are initiated by the Customer, the Customer shall consult them with QuarticOn (at firstname.lastname@example.org) before proceeding with their implementation, providing the estimated scope and duration of work, and the expected date of readiness to redeploy QuarticOn’s services. Failing to do so, the Customer shall be charged by QuarticOn for the period of service interruption in accordance with Section 13.
- Administration Panel. QuarticOn shall grant the Customer access to the Administration Panel by providing them with a generated Customer ID, and the Customer shall set their password. The Customer shall be responsible for the protection of their ID and password against unauthorised access. In the event of unauthorised access to their ID or password, the Customer shall immediately report this to QuarticOn. Using the Administration Panel, the Customer can manage their Services based on the features provided by QuarticOn. This includes selecting the number and positioning of the Recommendation Frames on the Website, or in the email templates sent by the Customer, the scope of information about products and services in the Recommendation Frame, and adjusting the design of Recommendation Frames. The Administration Panel shall feature suggestions on Service configuration. Through the Administration Panel, the Customer can also access information about the System’s efficiency.
- Access to the Customer Product Catalogue. The Customer Product Catalogue shall be downloaded by the System automatically based on the information published on the Website. The Customer Product Catalogue shall be updated at least once every 24 hours. An updated catalogue must be available at 4:00 CET at the latest. Where data cannot be downloaded, the Customer shall promptly provide QuarticOn with the Customer Product Catalogue, which should be consistent with the current technical specification of the System’s product catalogue. QuarticOn shall not be held responsible for any irregularities due to the Customer Product Catalogue being unavailable, out of date or inconsistent with the System’s technical specification.
- Script installation. QuarticOn shall provide the Customer with Scripts via the Administration Panel. The Customer shall be responsible for Script installation across their Website. QuarticOn shall provide the Customer with technical support to install Scripts.
- Customer’s representations. The Customer represents that it has Website authorisations allowing it to enable the installation and functioning of Scripts. The Customer further represents that:
- System maintenance. QuarticOn shall maintain and update the System with as little compromise on the quality and continuity of Services as possible. QuarticOn reserves the right to interrupt its Services on each Thursday between 2:00 and 4:00 CET.
In order to protect QuarticOn’s IP address reputation and prevent email messaging which might be considered SPAM, QuarticOn reserves the right to (a) set the limit of six (6) emails to a single email address per calendar month, unless the Order stipulates otherwise; (b) refuse sending emails to non-existing addresses (Hard Bounce); (c) refuse sending emails to addresses which have not opened the email for 180 days (Soft Bounce); (d) refuse to send emails to email addresses which have not agreed to receiving marketing messages from a given sender.
- Technical issues. The Customer shall report all technical issues to email@example.com, providing the description of the issue and stating their contact person who has technical knowledge and knows the details of the issue to support QuarticOn in resolving it. QuarticOn shall resolve technical issues with Scripts and Systems for which it is responsible as promptly as possible. If the issue is not resolved within forty eight (48) clock hours from the time QuarticOn proceeded with resolving it, the amount due to QuarticOn shall be reduced by 1/30 of their average monthly amount due in the last three months for each started 24-clock-hour period of continuing technical issues following the aforementioned 48 clock hours.
- Amount due. The amount payable to QuarticOn shall depend on the Order and the proposal and price list attached thereto. Should any component of the amount due be variable, the amount shall be calculated based on information collected by the System. Before an invoice is issued, QuarticOn shall provide the Customer with the information collected by the System for the relevant reference period. The Customer shall have three (3) working days to raise reservations, if any, regarding such information. Where no reservations are raised, the Customer shall be deemed to have accepted the information. In return for Services the Customer shall pay QuarticOn the amount defined in the Order within the time limit specified therein. Time limits for invoice issue shall be defined in the Order. The Customer shall pay QuarticOn statutory interest for failing to pay any invoice in a timely manner. A suspension or limitation of Services for reasons attributable to the Customer shall not release them from the obligation to pay the full amount due to QuarticOn. Payments shall be made in the currency defined in the Order to QuarticOn’s bank account stated in the invoice. The payment date shall be considered the date on which the relevant amount is credited to QuarticOn’s bank account. QuarticOn shall issue electronic invoices and send them to the email address stated in the Order.
Any commissions or fees in respect of the payment for Services shall be at the expense of the Customer (except for SEPA transfers in EUR, in which case the expenses are divided equally between the sender and the recipient).
In the event of any delay in the payment of the amount due by the Customer which is longer than 14 days, QuarticOn reserves the right to temporarily disable Services if the Customer fails to pay the outstanding amount following electronic notice to the Customer and a request for payment within the next seven (7) days. The client undertakes to cover the costs of the debt collection procedings, if such are ordered.
- Calculation of the amount due. The amount due shall depend on the Service package chosen by the Customer as per the proposal and price list attached to the Order and accepted by the Customer. In addition, the Order may refer to the following criteria with regard to variable components of the amount due:
- Number of unique users – the number of individual visitors to the Website in a given calendar month who are identifiable by Scripts;
- Size of the mailing base – the number of the Customer’s Contacts in the Customer Panel;
- CPM – unless the Order stipulates otherwise, the amount due to QuarticOn shall be calculated as the number of Recommendation Frame or Product Creation views multiplied by the amount stated in the Order;
- CPS – unless the Order stipulates otherwise, the amount due to QuarticOn shall be calculated as the percentage of the gross value of Post-Recommendation Purchases and/or Transactions, as indicated in the Order.
With regard to variable components of the amount due: (i) the number of unique users; (ii) the size of the Contact Database – the proposal attached to the Order shall contain a price list setting out the ranges from which the value of the amount due will depend. Should, in the course of the Agreement, a change occur in (i) the number of unique users, (ii) the size of the Contact database such that it results in the change of the amount due – the new amount due shall be payable from the month in which such a change occurred.
Should the Customer pay the amount due in advance for a period longer than three (3) months and the number of unique users or the size of the Contact database increase by more than 30% of the value defined in the Order in the period for which the payment was made in advance, QuarticOn shall have the right to charge extra as per the ranges provided in the price list attached to the Order for the period starting from the month in which the change occurred. The value of the additional amount due shall be determined on the basis of the price list, including any discounts in respect of advance payment.
Right to payment where the Script has not been installed. If, in the course of the Agreement, the Customer (i) fails to fulfil the conditions required by QuarticOn to commence Services from the Planned Launch Date; or (ii) uninstalls the Scripts from the Website due to technical issues; or (iii) fails to reinstall the Scripts on the Website within 48 hours from the resolution of the technical issues; or (iv) otherwise prevents QuarticOn from providing their services (such as by blocking the System’s IP), QuarticOn shall have the right to claim the amount due in full, as stated in the Order, and if the Customer prevents the amount due defined in the Order from being applied, QuarticOn may charge them a monthly amount due calculated as the average amount due for the last three (3) months preceding any of the aforementioned events in proportion to the time in which the service could not be provided. QuarticOn shall inform the Customer of any such event and request them to remedy such breach of Agreement..
Licence. Upon the conclusion of the Agreement, QuarticOn grants the Customer, in return for the payment of the relevant amount, a non-exclusive, non-transferable license for the agreed time of Services in respect of the features available from the Service package chosen by the Customer in the proposal attached to the Order. The license shall authorise the Customer only to (i) install Scripts on the Website; (ii) use the System solely in the form of an object code as an element of the Website. The Customer may not modify, add, adapt, translate or create any works deriving from the software or a piece thereof based on the Script or the System. The Customer shall not be authorised to use any features beyond the scope of the Service package chosen by them in the proposal, as attached to the Order. The Customer may not reverse engineer, decompile or disassemble the source code, or otherwise try to identify the System’s or Script’s source code. The Script and System licence terms shall apply to all fixes, patches, derivative versions, updates and upgrades to which the Customer is entitled under the Agreement. The Customer may not transfer any rights to and sublicense the Script or System, whether in full or in part. The Scripts and the System shall remain QuarticOn’s property and may not be modified, copied or transferred without QuarticOn’s consent. In the event of non-compliance by the Customer, QuarticOn reserves the right to charge a contractual penalty for each non-compliance, amounting to EUR 25,000, with the caveat that QuarticOn has the right to claim compensation in excess of the aforementioned penalty.
- System efficiency. QuarticOn does not issue any warranty with regard to the efficiency of the System, and in particular with regard to increasing the Customer’s profits, or generating a specific level thereof. QuarticOn shall collect, store and analyse Statistics using Scripts to be able to render Services appropriately. QuarticOn represents that (i) Statistics will be anonymised and, according to QuarticOn’s best knowledge, such information will not include personal data as defined by Polish law; (ii) the collection, storage and analysis of Statistics will be done in such a manner as to ensure the security of such Statistics. QuarticOn shall be entitled to the Statistics collected, and to the results of analyses thereof, with the right to make them available, sell them or otherwise use them for business purposes, provided that such Statistics will not allow to identify their specific origin. QuarticOn shall be the only entity authorised to access the database containing Statistics.
- System liability. QuarticOn shall not be held responsible for any disruptions, malfunctions or interruptions in Service provision due to (i) disruptions in the computer environment in which the Scripts will be installed; (ii) technical issues beyond the operational infrastructure of Scripts and the System; (iii) other actions taken by the Customer or their third-party product or service providers, including in particular as a result of technical issues, breakdowns of computers or other devices of the Customer or such third-party providers. The Customer declares that it has become familiar with the System before placing the Order, and that it has no reservations about it. QuarticOn’s liability arising from the Agreement shall be limited to the damage or loss actually suffered by the Customer (excluding loss of profit) and three times the value of the average monthly amount paid by the Customer to QuarticOn in the last three months.
- QuarticOn’s representations. QuarticOn represents that the exercise of any rights granted to the Customer under the Agreement does not violate any intellectual property rights, including in particular industrial property rights, copyrights and any other exclusive third-party rights. QuarticOn represents that QuarticOn holds any and all intellectual property rights in respect of Scripts and the System, and that such rights are free from any third-party rights, and that there is no basis for third-party claims to such rights in the future. QuarticOn shall not be held liable for violating intellectual property rights as a result of the Customer’s use of Scripts in breach of this Agreement, including in particular in combination with any equipment or programs not supplied by QuarticOn.
Term of the Agreement. The Agreement shall be concluded for an indefinite period, unless otherwise arranged thereunder. In the case of fixed-term Agreements (as per Order), once the fixed term of the Agreement has lapsed, the Parties shall be bound by an indefinite-term Agreement subject to the currently applicable price list (with no discounts), unless the Customer informs QuarticOn in writing, at least three (3) months before the end of the term of the Agreement, that it does not wish to extend the Agreement.
The term of the Agreement shall start from the date on which the first Service is launched, but not later than on the 30th day from the Planned Launch Date. Each Party may unilaterally terminate a fixed-term Agreement in writing, subject to three months’ notice effective at the end of the last full monthly reference period, with the caveat that the Agreement may not be terminated during its first full three calendar months in force (excluding a test period, if any).
Each Party may also terminate the Agreement in writing with immediate effect in the case of a gross breach of Agreement by the other Party, and in particular QuarticOn shall have the right to such immediate termination where: (i) the Script has been installed on websites whose contents violate applicable Polish law; (ii) the Customer has made any changes to the Script installed on the Website without Quarticon’s authorisation; (iii) the Customer is in default with any payments due to QuarticOn in excess of 21 days (from the last invoice), following a payment request to the Customer with a 7 days’ time limit which the Customer has failed to fulfil; (iv) the Customer makes multiple use of the same data from Recommendations and bypasses the System. Once the Agreement has expired, (i) the Customer shall immediately stop using Scripts, and, in particular, shall promptly uninstall Scripts from the Website; (ii) the Parties shall settle their accounts; (iii) within 48 hours QuarticOn shall disable all Services that were the subject of the Agreement. Where QuarticOn terminates a fixed-term Agreement due to a gross breach by the Customer, the Customer shall have no right to claim reimbursement of any amounts paid in advance..
Customer’s personal data. QuarticOn is the administrator of data provided by the Customer in the Order. The Customer provides its data voluntarily and QuarticOn shall process such data for the sole purpose of rendering Services and issuing VAT invoices. Personal data shall be processed on paper and by means of automated computer systems. The provision of personal data is always voluntary, but necessary for the appropriate rendition of services and performance of the Agreement. Refusal to provide the personal data required in the Order shall prevent the appropriate rendition of Services under the Agreement. Subject to the Customer’s consent, personal data shall also be processed for marketing and advertising purposes to provide the Customer with information on QuarticOn’s products and services, including by emails. The data subject may access, rectify, restrict the processing of and export their personal data. The data subject may also request desistance from any unlawful use of their personal data, withdraw their processing consent, object to the processing of their personal data, and request the erasure of such data. Personal data shall be stored for the term of the Agreement and thereafter for the purposes of:
- seeking any claims in respect of the performance of the Agreement,
- fulfilling any obligations under applicable law, including in particular tax and accounting obligations,
- preventing fraud and abuse,
- producing statistics and archiving,
- for a maximum of 10 years from the date of expiration or termination of the Agreement.
Personal data shall be stored for marketing purposes until the Customer has withdrawn its processing consent.
For the purposes of performing this Agreement, it is necessary for the parties to exchange the personal data of Contact Persons. For compliance with the obligation to inform under GDRP, the party providing the personal data of Contact Persons shall commit and have the authorisation to provide the Contact Person, on behalf of the party receiving such Contact Person’s personal data, with the information referred to in Article 14 GDPR.
- Users’ personal data. QuarticOn shall process the personal data of Website users solely to the extent necessary to render Services to the Customer. Such data include the email addresses and online identifiers of Website users, and information on their shopping preferences. Detailed provisions governing QuarticOn’s processing of personal data provided by the Customer shall be contained in the Personal Data Processing Agreement concluded by the Customer and QuarticOn automatically upon the signing of the Order, as appended to these GTS. The Personal Data Processing Agreement shall be concluded for the term of the Agreement, effective from the day on which the Order is signed. The Personal Data Processing Agreement may be terminated only when the Agreement is terminated.
- Risks. QuarticOn advises the Customer that the use of Services involves transmission of data by means of the public Internet network, carrying with it the risks associated with the use of the Internet by any user thereof, including in particular those related to malware, such as viruses, Trojans and worms. In order to minimise these risks, the Customer should use up-to-date antivirus software and protect its Website logins and passwords from unauthorised access.
- Contact Person. The Contact Person shall be authorised to make decisions on matters related to the ongoing performance of the Agreement.
- Changes in Orders. The parties shall immediately inform each other of any changes to the data provided in the Order, in particular on Contact Persons, addresses, contact details and other data required for the parties to contact each other. Any amendments to the Agreement, including with regard to the scope of Services and the forms and terms of payment of any amounts due to QuarticOn, shall not be valid unless made in writing.
- Final provisions. QuarticOn may disclose the fact that it has entered into an Agreement with the Customer by using the Customer’s logo in its portfolio. These GTS are governed by Polish law. Should any provisions of these GTS prove ineffective or invalid, whether in full or in part, this shall be without prejudice to the validity and applicability of the remainder of GTS. The parties shall use their best efforts to resolve any disputes arising from, or associated with, these GTS, the Agreement or Orders amicably, and where such amicable resolution is not possible, the dispute shall be referred to the Polish common court of law with territorial jurisdiction over QuarticOn’s address.