QuarticOn General Terms and Conditions of Provision of Services dated 10 April 2019
These QuarticOn Terms and Conditions on Provision of Services (“T&C”) apply to all Orders and to any use of the Services. The Client, by placing an Order, agrees to the wording of the T&C. When an Order is signed by QuarticOn and the Client, QuarticOn and the Client conclude a Contract of the wording consistent with the Order and the T&C attached thereto. Only an entrepreneur may be a Client. The Client warrants that the object of the Services is directly connected with the object of its activity.
The Client may get technical support at: firstname.lastname@example.org
1. Definitions. The definitions below apply to the T&C, the Order, the Contract and attachments thereto:
2. Services. QuarticOn shall provide against remuneration the Services specified by the Client in the Order and in the offer and pricelist accepted by the Client attached to the Order. The offer shall specify the package of Services selected by the Client. QuarticOn shall not be obliged to provide any Services other than the Services specified in the offer attached to the Order, and the Client shall not have the right to use functionalities not covered by the package selected in such offer. A condition for QuarticOn to commence to provide the Services as from the Planned Implementation Date is that (i) the Client makes available the Client Product Catalogue […] days before the Planned Implementation Date; (ii) the Scripts are correctly installed on the Website in the case of the Recommendations Service and (iii) the Scripts are correctly installed in the code of the email messages sent by the Client in the case of the Emailing Automation Service. If the Client does not satisfy the above conditions before the Planned Implementation Date, QuarticOn shall commence to provide the Services first when these conditions having been satisfied by the Client.
3. Additional Services. QuarticOn provides services for the Website. Should a re-implementation be necessary as a result of (1) material technological or functional changes on the Website, such as for example a change of the e-commerce platform, construction of a new Website, change of the look of a webpage (2) a need to implement new functionalities, e.g. new Recommendation Frames, such services shall be provided against an additional fee. QuarticOn shall present in reply to the Client’s inquiry a commercial offer within 3 business days and shall commence to provide the services upon the Client’s acceptance of the offer under a separate order placed by the Client. The basis for the price estimate of the services shall be the rate for 1 commenced man-hour of work indicated in the order. Implementation and provision of new services offered by QuarticOn that are not covered by the initial Order shall be against additional remuneration resulting from the pricelist, the offer or agreed separately by the Parties. If the actions described in (1) are initiated by the Client, the Client shall be obliged, prior to commencement thereof, to consult QuarticOn (at email@example.com) and indicate the estimated scope of works, their duration and the date of readiness to relaunch QuarticOn services. Lack of such information shall result in QuarticOn charging additional remuneration for the period of QuarticOn’s incapability to provide Services in accordance with point 13.
4. Administration Panel. QuarticOn shall make it possible for the Client to access the Administrative Panel by generating an ID for the Client; a password shall be selected by the Client. The Client shall be responsible for protection of its ID and password against disclosure to unauthorized persons. If the ID or the password is disclosed to unauthorized persons, the Client should immediately inform QuarticOn thereof. The Client can, via the Administration Panel, manage the Services in the scope of the functions made available by QuarticOn, i.a. the Client can choose the number and location of the Recommendation Frames on the Website or in the e-mail message template sent by the Client, the amount of information on products and services in the Recommendation Frame, as well as adjust the look of the Recommendation Frames. The Administration Panel shall contain suggestions for Services configuration. The Administration Panel shall also make it possible to access information on the efficiency of the System functioning.
5. Making the Client Product Catalogue Available. The Client Product Catalogue shall be automatically downloaded by the System on the basis of the information posted on the Website. The Client’s Product Catalogue should be up-to-date and should be updated by the Client at least once every 24 hours. The catalogue should be available no later than at 4.00 CET. If it is impossible to download the data, the Client shall immediately make available the Client Product Catalogue, which should comply with the current technical specification of the System product catalogue. QuarticOn shall not be liable for irregularities resulting from the failure to make the Client Product Catalogue available, it being outdated or inconsistent with the System technical specification.
6. Installation of Scripts. QuarticOn shall make available the Scripts to the Client via the Administration Panel. The Client shall be responsible for installation of the Scripts on the Website. QuarticOn shall provide the Client with technical support in the scope of the Scripts installation. Correct installation of the Scripts must be confirmed in the Administration Panel.
8. Client’s Warranties. The Client warrants that it holds rights to the Website in the scope making it possible to agree to the installation and operation of the Scripts. The Client also warrants that:
9. System Maintenance. QuarticOn shall carry out maintenance and updates of the System in a manner which is the least burdensome for the quality and continuity of provision of Services. QuarticOn reserves the possibility of an interruption in provision of Services each Wednesday between 2.00 and 4.00 CET.
10. Failure. The Client should report any and all failures to the following email address: firstname.lastname@example.org. A failure report should contain a description of the failure and should indicate the data of a contact person on the part of the Client that has the technical and factual knowledge concerning the failure, who will support QuarticOn by repair of the failure. QuarticOn shall remove failures of Scripts and the System for which QuarticOn is responsible for as soon as possible. If a failure is not repaired within forty-eight (48) clock hours from the moment of commencement of repair thereof, QuarticOn’s remuneration for Recommendations shall be reduced by 1/30 of the average monthly QuarticOn remuneration from the last three months for every commenced 24 clock hours of the failure.
11. Remuneration. Remuneration due to QuarticOn shall result from the Order and the offer and pricelist attached thereto. If any remuneration components are of variable character, then the remuneration shall be calculated only on the basis of the information collected by the System. QuarticOn shall present to the Client information collected by the System for a given settlement period, prior to the issue of an invoice. The Client shall have 3 business days to present objections concerning such information. If there are no objections presented within this deadline, it is assumed that the Client has accepted the information received.
For the Services provided the Client shall pay to QuarticOn the remuneration set in the Order within the deadline stipulated in the Order. The dates of issue of invoices shall be indicated in the Order. The Client shall pay to QuarticOn statutory default interests for the Client’s failure to comply with the payment deadline of any invoice. Suspension or limitation of Services that is attributable to the Client shall not release the Client from the obligation to pay full remuneration to QuarticOn. Payments shall be made in the currency specified in the Order to QuarticOn’s bank account indicated in the invoice. The date when the QuarticOn bank account is credited with the amount of the payment shall be considered to be the payment date. QuarticOn shall issue electronic invoices and shall send them to the email address specified in the Order.
All commissions or fees connected with making of a payment for the Services shall be incurred by the Client (with the exception of SEPA transfers in EUR whose costs are equally shared by the sender and the recipient).
12. Remuneration Calculation. The remuneration shall result from the Services package selected by the Client, in accordance with the offer accepted by the Client that has been attached to the Order and the pricelist. Additionally, an Order, in the scope of variable elements of QuarticOn’s remuneration may rely i.a. on the following criteria:
In case of the following variables: (i) number of unique users, (ii) size of the e-mailing base – the offer attached to the Order shall contain a pricelist indicating number ranges determining the amount of the remuneration. If during the term of the Contract the (i) number of unique users, (ii) size of the e-mailing base change to such an extent that this will result in a change of the amount of remuneration – the new amount of the remuneration shall be due as from the month in which such change occurred.
In case the Client pays remuneration in advance for a period longer than 3 (three) months, if during the pre-paid period the number of unique users or the size of the e-mailing base doubles as compared to the value specified in the Order, QuarticOn shall have the right to charge additional remuneration in accordance with the number ranges indicated in the pricelist attached to the Order, as from the month in which the change occurred. The amount of the additional remuneration shall be determined on the basis of the pricelist, account taken of any and all abatements granted for payment in advance.
13. Remuneration if Script is not installed. If the Client (i) does not complete the actions being the condition for QuarticOn to commence provision of the Services as from the Planned Implementation Date; (ii) uninstalls the Scripts from the Website although there was no failure; (iii) does not reinstall Scripts in the Website within the deadline set, after a failure has been removed; (iv) otherwise makes it impossible for QuarticOn to provide Services (e.g. System IP block), then QuarticOn shall receive the whole remuneration indicated in the Order.
14. License. Upon the conclusion of the Contract, QuarticOn in return for the remuneration grants to the Client a non-exclusive, non-transferable license, for the agreed time of providing of Services, in the scope of functionalities resulting from the Services package selected by the Client in the offer attached to the Order, authorizing the Client only to (i) install the Scripts on the Website; (ii) use the System only in the form of a binary code as an element of the Website. The Client is not authorized to modify, add, adapt, translate or create derivative works of software or a fragment of software based on the Script or the System. The Client shall not be authorised to use functionalities not covered by the Services package selected by the Client in the offer attached to the Order. The Client is not authorized to reverse engineer, reverse assemble, decompile, dismantle or perform any other actions aimed at discovery of the source code of the System or of the Script. The terms and conditions of the license for the Script and the System apply to any and all repair versions, patches, derivatives, updates and upgrades, to which the Client is entitled under the Contract. The Client can neither transfer any rights nor grant further licenses concerning the Script or the System, either in whole or in part. The Scripts and the System remain the property of QuarticOn and may not be modified, copied or transferred without QuarticOn’s consent.
15. Effects of the System Functioning. QuarticOn does not provide any warranties with respect to the effectiveness of the System, in particular with respect to increasing or generating a certain level of income for the Client. In order to provide the Services properly via the Scripts, QuarticOn shall collect, store and analyse the Statistics. QuarticOn warrants that (i) the Statistics shall be anonymised and according to QuarticOn’s best knowledge they shall not constitute personal data within the meaning of the Polish law; (ii) collection, storage and analysis of the Statistics shall take place in a manner assuring safety of those Statistics. QuarticOn shall be the entity with the right to the collected Statistics and the results of any analysis of these Statistics, with the right to disclose and sell them as well as to use them for other business purposes, whereby the Statistics shall not indicate any particular origin thereof. QuarticOn shall be the entity with exclusive right to the data base containing the Statistics.
16. QuarticOn’s Liability. QuarticOn shall not be liable for any disruptions, errors, lack of continuity of the Services caused by (i) disruptions occurring in the IT environment in which the Scripts are installed; (ii) technical failures outside of the operational infrastructure of the Scripts or the System; (iii) other actions of the Client or third parties providing products or services to the Client, in particular resulting from technical defects, failure of a computer or other equipment of the Client or such third party. The Client represents that prior to placing an Order, the Client has familiarized itself with how the System operates and does not present any objections with respect thereto. QuarticOn’s liability under the Contract is limited to the damage actually sustained by the Client (excluded from redress is any damage in the form of lost profit) and up to the amount of three times the average monthly remuneration paid by the Client to QuarticOn within the last three months.
17. QuarticOn’s Warranties. QuarticOn warrants that exercise of any of the rights granted to the Client under the Contract is not in breach of any intellectual property rights, in particular industrial property rights, copyrights, or any other proprietary rights held by third parties. QuarticOn warrants that any and all intellectual property rights concerning the Scripts and the System are held by QuarticOn and that they are free from any rights of third parties, and moreover that there is no basis for any third parties to bring any claims with respect to these rights in the future. QuarticOn shall not be liable for any breach of intellectual property rights in connection with the Client’s use of the Scripts in a manner inconsistent with the Contract, and in particular together with any equipment or software that was not delivered by QuarticOn.
18. Free Trial Period. If agreed, use of the Services may commence with a free trial period specified in the Order whose duration shall be calculated from the Planned Implementation Date. The right to the free trial period, the scope of functionalities available during the trial period shall be specified by QuarticOn. The same Client may use a free trial period only once.
19. Duration of the Contract. If a Client who has used the free trial period does not resign from further use of the Services before the lapse of the trial period indicated in point 17, upon the lapse of this period – the Client and QuarticOn shall be bound by an indefinite-term Contract, unless otherwise agreed in the Order or the offer attached thereto.
The Contract is concluded for an indefinite period, unless otherwise agreed upon in an Order.
Each Party has the right to terminate the indefinite-term Contract in writing upon a 1-month notice period effective at the end of the calendar month, with the reservation, however that the Contract cannot be terminated within the first three full calendar months thereunder (this period does not include the trial period).
Each Party may also terminate the Contract in writing with immediate effect in case of a gross breach of the provisions of the Contract by the other Party, in particular QuarticOn shall have the right to terminate the Contract with immediate effect if: (i) the Script is installed on websites whose content is inconsistent with the provisions of law applicable in Poland; (ii) the Client introduces changes not authorized by QuarticOn to the Script installed on the Website; (iii) the Client is in delay with payment of the remuneration to QuarticOn for more than 21 days (counting from the oldest invoice), after prior ineffective call for payment within 7 days addressed to the Client; (iv) the Client multiple times uses the same data from a Recommendation in omission of the System. If the Contract terminates (i) the Client should immediately cease to use the Scripts, in particular the Client should immediately uninstall the Scripts from the Website; (ii) the Parties should make mutually due settlements (iii) QuarticOn within 48 hours shall shut down all Services being the object of the Contract. If QuarticOn terminates the fixed-term Contract, due to a gross violation of the provisions thereof by the Client, the Client shall not have the right to demand a refund of the remuneration paid in advance.
20. The Client’s Personal Data. QuarticOn is the data controller of the data provided by the Client in an Order. Personal data are provided by the Client voluntarily and shall be processed by QuarticOn solely for the purpose of provision of the Services and issue of VAT invoices. Data shall be processed on paper and in automated computer systems. Provision of personal data is always voluntary, it is however also necessary for correct provision of the Services and performance of the Contract. A refusal to provide personal data required in the Order makes it impossible to correctly provide the Services in performance of the Contract. If the Client agrees, the data shall also be processed for marketing and advertising purposes (receiving information on QuarticOn products and services), including receiving them via e-mail. A data subject shall have the right to access their data and to rectify it, the right to request that processing and export of their personal data is limited. A data subject shall also have the right to request that their data is no longer used in breach of the law, as well as the right to withdraw their consent to personal data processing, to object to such processing, as well as to request that their data is erased.
Personal data shall be stored for the duration of the Contract, as well as thereafter for the following purposes:
• to exercise legal claims in connection with performance of the Contract,
• to perform obligations resulting from the law, in particular tax and accounting obligations,
• to prevent abuse and fraud,
• for statistical and archiving purposes,
• maximally for the period of 10 years after the end of the Contract.
Personal data used for marketing purposes shall be stored until the consent to processing thereof is withdrawn.
The Parties need to exchange personal details of Contact Persons for the purpose of performance of the Contract. In order to comply with the information obligations resulting from the GDPR, a Party providing personal data of Contact Persons undertakes and is authorised to provide to the Contact Person on behalf of the Party receiving personal data of the Contact Person the information in accordance with Article 14 GDPR.
21. User personal data. QuarticOn shall process personal data of the Website users only in the scope necessary to provide Services for the benefit of the Client. This data includes: Website user’s email address, Website user online ID, as well as information on user shopping preferences. Detailed provisions concerning QuarticOn’s processing of personal data provided by the Client are stipulated in a personal data processing agreement concluded between the Client and QuarticOn that shall be concluded automatically upon signing of an Order, whose content constitutes an attachment hereto. The personal data processing agreement is concluded for the duration of the Contact and enters into force on the date of signing of the Order. The personal data processing agreement may be terminated solely upon termination of the Contact.
22. Threats. QuarticOn informs that the use of the Services is connected with transfer of data via the public Internet network and is encumbered with the risk connected with the use of the Internet by each of its users, in particular in connection with malicious software, i.e. viruses, Trojan horses, bugs. In order to minimize such threat, the Client should use up-to-date antivirus software and protect the access logins and passwords for the Website.
23. Contact Person. A Contact Person is authorised to make decisions in matters concerning day-to-day performance of the Contract.
24. Changes to an Order. The Parties undertake to immediately inform each other of any change of data indicated in the Order, in particular concerning the Contact Persons, addresses, contact details and other data necessary to contact one another. Changes of the wording of the Contract, including those pertaining to the scope of Services, forms of payment or the terms and conditions of remuneration shall be in writing or shall be invalid.
25. Final Provisions. QuarticOn may provide information on the conclusion of the Contract with the Client in its portfolio, using the Client’s logo for this purpose. The T&C are subject to Polish law. If any provisions of the T&C prove to be legally ineffective or invalid in whole or in part, this shall not affect the validity and effectiveness of the remaining provisions of the T&C. The Parties shall try to resolve any disputes resulting from or connected with the T&C, the Contract or the Orders amicably, and should it prove impossible to resolve a dispute amicably, the court competent to resolve such dispute shall be the Polish court with proper venue for the address of QuarticOn.
Attachment – PERSONAL DATA PROCESSING AGREEMENT
1. The Client represents that it is the controller of personal data of persons who are Website users, concluding contacts to purchase goods or services from the Client via the Website, processed in a data filing system known as “E-Commerce Clients”, jointly hereinafter referred to as the “Data”.
2. The Client represents that it processes the Data in accordance with the applicable law, and in particular that it has collected it in accordance with the applicable law and, to the extent that this is required under the law, it has obtained from every Data subject any and all legally required consents for processing of personal data as well as for disclosure thereof to QuarticOn.
1. On the basis hereof the Controller entrusts to QuarticOn processing of Data within the meaning of Art. 28 of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”).
2. QuarticOn shall process the Data solely in order to correctly perform the Contract, in the scope necessary for that purpose.
3. The Parties agree that Data entrusted to QuarticOn for processing shall be processed solely for the purpose of correct performance of the Contract.
4. The Data entrusted to QuarticOn for processing includes the following personal data:
5. QuarticOn is authorised to carry out the following operations on the Data: collecting, storing and compiling – whereby only for the purpose of proper performance of the Contract. These operations may be of repetitive character.
6. The Parties agree that the Data entrusted to QuarticOn may be processed solely during the term hereunder, commencing from the data of conclusion of the Contract, however no longer than up to termination or expiration of the Contract. Upon expiration of the Contract, QuarticOn is obliged to immediately permanently delete the Data as well as any and all copies thereof.
7. Subject to § 3 sec. 2, QuarticOn cannot, without the Client’s written consent, transfer the entrusted personal data to a third country or an international organization, unless it is obliged to do so by the EU or Polish law. In such case, prior to commencement of processing, QuarticOn shall immediately inform the Client of such legal obligation, unless it is prohibited by law to do so in consideration of important public interests.
1. QuarticOn represents that it disposes of relevant measures necessary to assure accurate level of Data protection.
2. QuarticOn cannot entrust Data processing to other entities without prior written consent of the Client, with the exception of the following entities providing services for the benefit of QuarticOn, to whom QuarticOn may provide personal data without a separate consent of the Client:
3. QuarticOn represents that it uses, in the scope specified in Article 32 GDPR, organizational and technical measures assuring appropriate level of protection of personal data against unauthorised disclosure, destruction or modification.
4. QuarticOn shall maintain records of categories of Data processing activities carried out on behalf of the Client, containing information indicated in Article 30 GDPR and in accordance with the rules specified therein. QuarticOn undertakes to make the records available upon request of the supervisory authority.
5. QuarticOn shall maintain a record of persons employed by QuarticOn by processing of the Data. These persons shall be obliged by QuarticOn to keep the Data confidential and to protect it against unauthorised disclosure.
6. QuarticOn shall notify the Client of every inspection initiated by the supervisory authority that is at least indirectly connected with the Data processing, as well as of every request of the supervisory authority to provide explanations in the above scope. This obligation remains in force also upon expiration or termination of the Contract.
7. QuarticOn undertakes to cooperate with the Client in the course of any proceeding conducted with respect to the Client to establish whether the Data are processed correctly.
8. In case of a Data breach, QuarticOn, having ascertained such breach, shall be obliged to notify the Client thereof immediately, however no later than within 48 hours, providing any and all material information concerning the breach.
The Client is responsible for compliance with personal data processing and protection regulations, including in particular for GDPR compliance, which does not in any way exclude or limit QuarticOn’s responsibility for processing of the Data in accordance with applicable law, or QuarticOn’s liability for non-performance or improper performance of the Contract.
During the term hereunder, as well as after termination or expiration hereof, QuarticOn shall be obliged to keep confidential the Data entrusted thereto to be processed under the Contract, including not to disclose them to third parties. The provisions of this paragraph do not apply, if disclosure of such Data is required under the provisions of law or under a ruling or decision of a relevant authority or court.