Terms and Conditions of Design Service Subscription
Defined Terms
Whenever capitalised terms are used in the Terms and Conditions, they shall be construed as follows:
Working Days – Monday through Friday, excluding bank holidays in Poland;
Confidential Information – information constituting a business secret within the meaning of the Unfair Competition Act of April 16, 1993, as well as any other information or materials relating to the activities of the Party and third parties co-operating with the Party, which came into possession of the other Party in connection with the provision of the Services. Confidential Information – regardless of its form and manner of transmission – includes, in particular, information of technical, technological, organisational, marketing and financial nature, as well as information concerning the projects implemented; Confidential Information shall also be understood by the Parties as any other data and information not listed above and provided to the Party subject to confidentiality.
Subscription Model – a model of providing Services by the Contractor to the Ordering Party under a renewable payment of Remuneration paid in advance before the start of a given Billing Period;
Billing Period – a period for payment of Remuneration lasting one calendar month;
Personnel – employees of the Party and natural persons, including those running sole proprietorships, employed by the Party under a civil law contract (contract for provision of services, specific work contract, etc.), as well as subcontractors and advisers of the Parties;
Payment Intermediary – the platform of Stripe Inc. 354 Oyster Point Boulevard, South San Francisco, California, 94080, USA, which mediates the payment of Remuneration by the Ordering Party for the provision of Services in the Subscription Model;
Manhours – the hours during which the Contractor shall perform work understood as the provision of Services;
GDPR – 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 (the General Data Protection Regulation);
Parties – both Parties involved in these Services, separately also referred to as the Contractor and the Ordering Party;
Force Majeure – an event independent of the Party, external, impossible to predict and prevent, which occurred after the provision of the Services has commenced;
Terms and Conditions – these Terms and Conditions together with the Attachments accepted by the Ordering Party when the Ordering Party confirms its choice of payment in the Services Subscription Model;
Services – the services provided by the Contractor to the Ordering Party consisting in Design Services;
Works – results of the provision of the Services that constitute a work within the meaning of copyright law, to which the Contractor grants the Ordering Party a license or transfers copyright to the Ordering Party;
Remuneration – remuneration due to the Contractor, payable in the Subscription Model for the provision of the Services;
Contractor – GogoApps S.A. with its registered office in Warsaw (00-666), ul. Plac Stanisława Małachowskiego 2, entered into the National Court Register kept by the District Court for the capital city of Warsaw, 12th Commercial Division of the National Court Register, entry no. 0000839882, NIP: 5252822543, REGON: 386019240, operating under the brand name "Flod", website address: https://www.weareflod.com/
Task – a task submitted by the Ordering Party to be fulfilled by the Contractor in the performance of the Services;
Attachment – an attachment to the Terms and Conditions constituting an integral part hereof.
Basic Provisions
The subject matter of the Terms and Conditions is the provision of Design Services by the Contractor to the Ordering Party and granting by the Contractor to the Ordering Party of a license to Works created as a result of rendering the Services in exchange for Remuneration payable in the Subscription Model.
By acknowledging and accepting these Terms and Conditions, the Ordering Party declares that there are no obstacles to their implementation, in particular arising from other contractual relations.
The use of the Services is possible provided that the Ordering Party meets the technical requirements referred to in Article 10.
The Contractor undertakes to perform the obligations specified herein with due professional diligence.
The Ordering Party acknowledges that their cooperation is crucial for proper performance by the Contractor of the obligations arising out of the Terms and Conditions . The Ordering Party shall immediately take all actions necessary for the correct performance of the Terms and Conditions by the Contractor, in particular upon each request made by the Contractor.
Each Party agrees to maintain confidentiality of the Confidential Information of the other Party, in accordance with Article 7.
The Parties undertake to ensure compliance with data protection legislation. If, in order to perform the Terms and Conditions, it is necessary to process personal data within the meaning of Regulation (EU) No 2016/679 of the European Parliament and of the Council of 27 April, 2016, on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, the Parties shall conclude a personal data processing entrustment agreement specifying the purpose and scope of personal data processing, constituting Attachment 2 to the Terms and Conditions.
The Ordering Party agrees to use their best efforts to ensure that their communications and decision-making related to the provision of the Services are in a manner enabling their timely completion.
The Contractor shall notify the Ordering Party immediately of any circumstances that may hinder the proper provision of the Services.
The Contractor may subcontract the provision of the Services or any part thereof to subcontractors without obtaining the consent of the Ordering Party. The Contractor shall be liable for the acts or omissions of their subcontractors referred to in the preceding sentence as for their own acts or omissions.
General Principles of Cooperation and Representations of The Parties
The Contractor shall commence providing the Services upon payment of the Remuneration in advance for the first Billing Period.
The Contractor shall provide the Services to the Ordering Party remotely.
Under the Subscription Model, the Ordering Party shall have the option to submit an unlimited number of Tasks to be performed by the Contractor, with the Contractor performing the Tasks in the order of priority defined by the Ordering Party as agreed with the Contractor when submitting the Tasks, subject to working on only one Task at a time.
The Ordering Party shall order Tasks using communication channels agreed upon by the Parties.
In each case the Parties will determine the features and assumptions regarding the performance of a given Task.
At the request of the Ordering Party, the Contractor shall provide information regarding the provision of the Services and progress of the Tasks.
The Ordering Party shall have the right to share their opinions in the course of providing the Services, which the Contractor shall take into account when performing work. The Contractor shall not be liable for damages resulting from any act or omission caused by compliance with the Ordering Party's instructions.
The Ordering Party shall have the right to require the Contractor to make corrections, if the Task sent to them by the Contractor has been performed incorrectly or incompletely. In such a case, the Parties, taking into account the extent of the necessary amendments, will jointly set a deadline for their completion. Amendments are to be made within the Remuneration referred to in Article 4 of the Terms and Conditions.
The Ordering Party shall communicate to the Contractor all information about their business needs and requirements for the Services and Tasks using the means of communication established by the Parties.
On the basis of the information referred to in Section 9, the Contractor shall appoint dedicated Personnel meeting the Ordering Party's criteria, who will perform work for the Ordering Party within the scope of the Services provided.
The Contractor guarantees that the Personnel have the necessary qualifications to perform the Services, as well as have access to, and will use, the Contractor's know-how.
The Ordering Party is obliged to provide complete information necessary for the performance of the subject matter of the Service and particular Tasks. The Contractor shall not be responsible for situations in which the Personnel, methodology or technology of the performed work does not meet the requirements of the Ordering Party, if the above is the result of the lack, incomplete or wrong information provided by the Ordering Party.
The Ordering Part shall be entitled to issue to the Contractor, in writing or by e-mail, a justified request to replace a member of the Personnel only in the following cases:
The Ordering Party shall document in no uncertain terms that a member of the Personnel is grossly violating the provisions of these Terms and Conditions;
a member of the Personnel is unavailable to the Ordering Party for more than 10 Business Days in which the member of the Personnel is to perform work for the Ordering Party, in a row, unless the Contractor has provided suitable replacements for that period or the Parties have agreed otherwise;
In the event that the Ordering Party submits a legitimate request as referred to in the Item above, the Contractor shall immediately, to the extent possible, replace a member of the Personnel with another of similar competence, unless the Parties agree otherwise.
Renumeration and Payments
In return for providing the Services, the Contractor shall be entitled to Remuneration paid in advance for the Billing Period in the Subscription Model in the amount specified at the time of purchasing the subscription.
The Remuneration must be paid no later than at 11:59 p.m. on the day of expiration of the previous Billing Period.
Payment of the Remuneration shall be made through the Payment Intermediary in accordance with the terms and conditions established by the Payment Intermediary, which can be found on its website at: https://stripe.com. The Payment Intermediary is entitled to a portion of the fee on each transaction, in accordance with the information available in the website: https://stripe.com/pricing.
All fees shall include VAT, where applicable, calculated in accordance with applicable regulations at the rate in effect at the time of payment of the Remuneration. A VAT invoice for the payment is sent to the e-mail address indicated by the Ordering Party in electronic version, to which the Ordering Party agrees.
The Contractor shall not be liable for incorrect data provided by the Ordering Party on the basis of which payment was made.
The Rejection of payment of Remuneration for the next Billing Period shall result in suspending the provision of the Services by the Contractor to the Ordering Party.
Copyrights
Within the agreed Remuneration specified in Article 4(1), the Contractor shall transfer to the Ordering Party proprietary copyrights to the Works, without time or territorial limitations, in all fields of exploitation known at the time of conclusion of an Order, in particular:
permanent and temporary acts of reproduction, in whole or in part, by any means and in any form, including reproduction during the input, display, use, transmission or storage of Works, including recording and reproducing Works by any technique, including digital recording, on any memory carrier (including the cloud),
translating, adapting, rearranging or making any other changes,
distribution, including placing on the market, lending or renting, as well as making them available to the public in such a way that everyone could have access to them at a time and place chosen by themselves.
Upon the transfer of the proprietary copyrights, the Contractor shall transfer to the Ordering Party the right to allow the exercise of the dependent copyrights in the derivative Works in fields of exploitation as specified in Section 1 above.
The transfer of proprietary copyrights to the Works will take place on the basis of a separate Contract on the transfer of proprietary copyrights, the template of which is attached as Attachment 1 to the Terms and Conditions, upon full payment of the Remuneration for the Billing Period in which the delivered Works were fixed. At the same time, the ownership of the media on which the Works were fixed shall be transferred to the Ordering Party.
The Contractor declares that the Ordering Party's use of the Works will not infringe the rights of third parties in respect of copyright or industrial property rights.
The Contractor agrees to ensure that persons entitled by virtue of personal copyrights in the Works will not exercise such rights against the Ordering Party.
It is forbidden for the Ordering Party to create any tools or databases containing data within the scope of the Contractor's activities.
Liability
The Contractor does not provide a guarantee on the results produced or transferred in the provision of the Services. Nothing in the Terms and Conditions should be construed as a guarantee of any kind
The total limit of liability of the Contractor, on any grounds for non-performance or improper performance of any obligations under the Services, shall be 100% (say: one hundred percent) of the Remuneration stipulated in Article 4(1).
Limitations of the Contractor’s liability shall not apply with respect to:
damages caused intentionally and as a result of gross negligence,
damages resulting from a breach of obligations regarding the protection of personal data or Confidential Information.
Liability of the Contractor for lost profits on the part of the Ordering Party, as well as implied warranty, is excluded.
The Contractor shall not be liable for damage suffered by the Ordering Party’s loss of data.
The Contractor shall not be liable for damage directly or indirectly incurred by the Ordering Party as a product of using the result of provided Services in a manner inconsistent with their intended use or inconsistent with the Terms and Conditions.
The Contractor shall not be liable for damage caused by any act or omission of the Ordering Party.
The Ordering Party undertakes to notify the Contractor of any circumstances on the part of the Ordering Party which may affect the proper provision of the Services by the Contractor. Failure to provide such information will result in all costs and additional activities related to the consequence of the event being borne by the Ordering Party.
The Contractor shall not be liable for irregularities in the performance of the Task that may result from the failure of the Ordering Party to comply with the obligation set forth in Section 8.
None of the Parties shall be liable for non-performance or improper performance of obligations specified herein, if their performance or proper performance has become impossible or hindered as a result of Force Majeure (directly or indirectly). In the event of Force Majeure preventing or hindering performance of the Services, a Party shall notify the other Party within 14 (in words: fourteen) days of the occurrence of the circumstance.
Confidentiality
Each Party warrants that they will treat all information obtained as a result of cooperation as Confidential Information and will not share it with third parties.
The Parties undertake not to use Confidential Information for any purpose other than the provision of the Services.
The following information is not to be treated as Confidential Information:
information that has already been or will be made public by the Party before or during the provision of the Services,
information that a Party, by virtue of statutory provisions or by virtue of a ruling issued by a competent court, decision or other act of a governmental authority, is obligated to disclose, to the extent only of the required disclosure, provided that the Party obligated to disclose such information immediately notifies the other Party of such obligation,
information obtained by a Party in compliance with applicable laws, prior to the date on which such information was obtained in relation to the provision of the Services,
autonomously developed by a Party, regardless of their disclosure if the Party is able to prove it.
Members of Personnel of the Parties shall not be treated as third parties referred to in the above Section 1.
The Parties shall have the right to disclose the fact and subject matter of cooperation for marketing purposes, in particular, by providing the above information in press materials, website, reference list and presenting the other Party's logo, to which this Party agrees.
Notwithstanding Section 5, the Contractor shall have the right to publish the results of the Tasks performed for the Ordering Party on its website and in social media to promote the Contractor.
The provisions of this Section are absolute and shall continue to apply even after termination of the Services within a period of 5 years from the date of termination of the Services for any reason.
Sharing Confidential Information with the other Party shall not imply granting the Receiving Party any rights to use such information other than those expressly granted in the Terms and Conditions or any other agreement entered into between the Parties. In particular, disclosure of Confidential Information shall in no way be construed as granting the license to exercise any intellectual property right, either in an explicit or implied manner.
Prohibition on Hiring Contractor's Employees
The Ordering Party undertakes not to employ any of the Contractor’s Personnel (on the basis of a contract of employment or a civil law contract) for the duration of the Services and for the period of 36 (thirty-six) months after the termination of the Agreement under the pain of payment of the contractual penalty stipulated in Section 2.
Should the Ordering Party violate the obligation stipulated in Item 1 above, the Ordering Party shall pay to the Contractor a contractual penalty in the amount of USD 80,000 (in words: eighty thousand) for each case of violation. The aforementioned penalty shall be calculated on the basis of a debit note issued by the Contractor and paid within the deadline specified therein. The payment of the aforementioned contractual penalty does not exclude the possibility of claiming damages in excess of the contractual penalty.
Subscription Period
The Services are provided for an indefinite period of time subject to prepayment of the Remuneration in the Subscription Model prior to the commencement of the Billing Period, with the Ordering Party being entitled to cancel the subscription at any time. In the event of cancellation of the subscription, the Services shall be provided by the Contractor to the Ordering Party until the end of the current Billing Period that has been paid, regardless of whether the Contractor is in the process of completing the Task ordered by the Ordering Party.
Cancellation of the subscription by the Ordering Party is done through the Stripe Payment Intermediary and consists in checking the appropriate box.
The Contractor shall have the right to terminate the Services upon one month's notice. However, in the event that the Contractor is in the process of completing a Task ordered by the Ordering Party, termination of the Services shall occur upon completion of such a Task and its acceptance by the Ordering Party.
A declaration on termination of the provision of the Services must be made in writing under the pain of nullity.
Technical Requirements
The minimum technical requirements allowing to use the Services are:
a device with access to the Internet running on a current operating system,
installed, properly configured and up-to-date version of the web browser,
active e-mail account.
Complaints
Complaints and comments from the Ordering Party regarding the Services should be sent to the following e-mail address support@weareflod.com of the Contractor.
A complaint should contain at least an e-mail address and a precise description of the circumstances and irregularities constituting the basis for the complaint.
The Contractor shall require the Ordering Party to clarify any doubts or provide additional information by e-mail, if this is necessary to process the complaint, indicating precisely such doubts or information required. If, despite this, the Ordering Party fails to send the required data, the Contractor is not required to process the complaint.
The complaint must be made within 30 days of the occurrence of the event constituting its basis. Complaints submitted after the aforementioned period will not be considered.
Complaints will be processed within 14 days of receipt. A reply to the complaint will be sent by e-mail to the address provided in the complaint.
Final Provisions
The law applicable to the provision of the Services by the Contractor is that of the Republic of Poland. To matters not regulated herein, the relevant provisions of the law of the Republic of Poland shall apply.
Any disputes arising from the provision of the Services shall be settled amicably by the Parties. If no amicable solution can be found, the Contractor’s registered office shall be the place of jurisdiction.
The invalidity of any provision of the Terms and Conditions shall not affect the validity of the remaining provisions hereof. If certain provisions of the Terms and Conditions are considered invalid, the Parties shall replace them with other provisions that have the same business effect.
The Terms and Conditions, together with the Attachments, constitute the entire agreement between the Parties with respect to the consensual intent of the Parties and the purpose of the Services.
The Ordering Party is not entitled to assign, transfer or encumber its rights or obligations under the Services or otherwise seek to dispose of them without the Contractor’s prior written consent.