3. Conclusion of a Contract for the Provision of Smartstock Services
The Customer shall be solely responsible for the content provided by the Customer or its designated End Users. All content and data sent by third parties authenticating themselves with the use of Customer Data or End User Data will be attributed to the Customer.
4. Terms of Service Provision
A. Right of Use
The Customer or its End Users must accept the terms of the Agreement applying to the Microsoft Azure Cloud in order to use Smartstock Services.
B. Fair Use
C. End Users
ii. in any way that violates or infringes upon the rights of any third party;
iii. to gain unauthorized access to other services, equipment, data, account or network, or disrupt their operation;
iv. to send spam or spread malware;
v. in a manner that may be harmful to any Smartstock Service or disrupt the use thereof by others;
vi. to act to the detriment of Smartstock.
D. Customer Data
E. Responsibility for Customer Accounts
The Customer shall be fully responsible for keeping confidential all confidential authentication credentials related to the Customer’s use of the Smartstock Service, including password and username. The Customer must promptly inform Smartstock of any potential misuse of Customer accounts or authentication credentials and any security breach relating to the Smartstock Service. The Customer assumes the entire risk of data deletion, unavailability and interruptions in the provision of services arising from circumstances for which the Customer is responsible.
F. Administrative Portal
The Customer shall be enabled to add and remove End Users as described in the Product Documentation.
G. Common Data Catalog
When the Customer orders a Smartstock Service using an email address in the domain of the organization with which the Customer is associated, the Smartstock Service adds the Customer to the directory of users using the same email domain. Customer data included in the catalog (first and last name/corporate name, date of recording, and email address) may be visible to other Smartstock Service users in the email domain of the Customer’s organization.
H. Evaluation Versions (Preview Versions)
I. Licensing of Smartstock Services
The Customer must obtain and assign appropriate subscription licenses (LS) required to use each of Smartstock Services. Each End User who accesses a Smartstock Service must have an LS assigned to him/her, unless otherwise specified in the Customer Order. The Customer may not use an individual Smartstock Service after the applicable LS has expired.
J. Technical Conditions
All the technical conditions that enable the Customer or its End User to use the Smartstock Service are described in the Product Documentation.
K. Technical Restrictions
The Customer shall comply with all the technical restrictions described in the Product Documentation supplied, such restrictions being designed to ensure that Smartstock Services are used as intended only. The Customer shall not attempt to circumvent these restrictions.
L. Changes to and Availability of Smartstock Services
M. Compliance with Laws and Regulations
Smartstock shall not be responsible for compliance with any laws applicable to the Customer or the industry in which the Customer operates, nor for the Customer’s use of the Smartstock Service as part of such activity.
It is not Smartstock’s responsibility to ascertain whether Customer Data contains information subject to any specific laws. The Customer shall be required to comply with all laws applicable to its use of Smartstock Services, including privacy rules, personal data, data protection, and confidentiality of transmitted information.
The Customer shall be responsible for determining whether the Smartstock Service is appropriate for storing and processing information that is subject to any particular laws or regulations, and for using the Smartstock Service in accordance with the Customer’s binding legal obligations. It is the Customer’s responsibility to respond to any third party claims regarding the Customer’s use of the Smartstock Service.
N. Professional Services
O. Withdrawal of Services and Functions
Three (3) months prior to removing any significant function or ceasing to provide the service, Smartstock shall notify the Customer thereof, unless prompter removal is required for security reasons, legal reasons, or reasons relating to the operation of the system. This shall not apply to Evaluation Versions.
5. Purchase of Services
A. Smartstock Service Orders
The purchase of a service shall be based on an Order signed by the Customer. The Customer shall declare in advance the acquisition of specified Products which are to be used by the Customer during the Term, and agrees to make the payment on the terms and conditions set out in the Customer Order.
For a limited time, the Customer may receive a limited Smartstock Service in an Evaluation Version free of charge as part of the Subscription (he so called Limited Offer). If this is the case, the provisions relating to prices, withdrawal fees, payment, and data storage may not apply.
As part of some offers, it is possible to modify the number of Smartstock Services ordered during the Subscription Term. The additional number of Smartstock Services added to the Subscription shall expire when the Subscription expires.
C. Prices and payments
Smartstock Services are provided for a fee. Payments are due and must be made in accordance with the terms of the Customer Order.
The price level results from the specific Smartstock Services ordered and the applicable Price Formulas stated in the Customer Order. Some offers make it possible to modify the number of Smartstock Services ordered during the Term, and the price level can also be adjusted accordingly.
Price level changes shall have no retroactive effect. During the Subscription Term, the prices of Smartstock Services relating to the Customer’s Subscription shall not increase compared to the prices stated in the Customer Order at the start of the Subscription. Exceptions include items marked in the Customer Order as temporary prices and Evaluation Versions. All prices and payment terms may change at the beginning of each renewed Subscription Term. Such changes to prices and payment terms shall be communicated to the Customer before the expiration of the Term in the form of a new Customer Order for the following Term.
In the Customer Order, the Customer may choose the option to have the Subscription renewed for another Term. Failure to select the automatic renewal option in the Customer Order results in termination of the Subscription as of the Expiration Date of the Term specified in the Customer Order. The Customer may change this choice at any time during the Term, however not later than 30 days prior to the Expiration Date specified in the Customer Order. Before the end of the Term, Smartstock shall notify the Customer on the upcoming Expiration Date and submit a Customer Order for another Term subject to the terms and conditions set out in such Order.
Renewal may be unavailable for a Limited Offer.
The Customer must pay all applicable taxes on goods and services (VAT), sales taxes, revenue taxes or other taxes on transactions, salaries, fees, surcharges or statutory fees, or similar amounts required to use Smartstock Services and which Smartstock may collect from the Customer in accordance with applicable laws.
The Customer shall be fully responsible for all taxes on civil law transactions and other taxes required by law, including taxes applicable to the dissemination of Products or making them available to the Customer’s Affiliates.
6. Term, Suspension, and Termination
A. Contract Duration and Termination
The contract for the provision of Smartstock Services shall be in effect for the duration of the Term specified in the Customer Order.
B. Termination of Subscription
If the Customer terminates its Subscription of the Smartstock Service during the Term, no provisions on any refund of payments previously made by the Customer shall apply, and in those cases where monthly payments are stipulated, the Customer shall pay the amount due for the remainder of the Term in accordance with the Customer Order.
C. Limited Offers
Smartstock may terminate the Subscription of a Limited Offer at any time with immediate effect and without a notice period.
D. Suspension of Service
Smartstock may suspend the Customer’s use of Smartstock Services if:
i. there is a reasonable need to prevent unauthorized access to Customer Data;
ii. the Customer does not respond within a reasonable time to a report of alleged violation or infringement of third party rights;
In the case of Limited Offers, the Subscription becomes inactive due to any use of Smartstock Services by the Customer in a manner inconsistent with that specified in the Customer Order.
If one or more of the above conditions materialize:
i. with respect to Limited Offers: Smartstock may immediately suspend the Customer’s use of Smartstock Services or the Subscription and the account without notice;
ii. with respect to all other Subscriptions: suspension will apply to the minimal necessary part of Smartstock Services and only for the period of time when the relevant circumstance or necessity prevails.
Smartstock shall notify the Customer of a suspension in advance unless immediate suspension is necessary in the sole opinion of Smartstock.
Smartstock shall notify the Customer of a suspension occasioned by non-payment at least fourteen (14) days before the suspension is effected.
If the Customer does not completely remedy the reasons for suspension within thirty (30) days from the date of suspension, Smartstock may terminate the Customer’s Subscription and delete Customer Data without storing such data for the agreed period.
Furthermore, Smartstock may terminate the Customer’s Subscription if the Customer’s ability to use Smartstock Services has been suspended more than twice during any 12-month period.
7. Warranty and Guarantee
A. Limited Warranty
Smartstock guarantees that the Smartstock Service shall operate essentially as described in the Product Documentation throughout the Term. If the Product does not meet the terms of this warranty, Smartstock will, at its sole discretion, perform a repair.
As regards the appropriate level of service, Smartstock shall provide the Customer with technical support under the terms of the Technical Support Service Level Agreement.
B. Disclaimer of Limited Warranty
This limited warranty is subject to the following restrictions:
i. liability for any implied warranties, guarantees or other assurances, which cannot be excluded by law, shall be valid only for the duration of the Term;
iii. it does not apply to Evaluation Versions or Limited Offers.
C. Disclaimer of Implied and Other Warranties
Subject to this clause, Smartstock makes no express, implied, statutory or other warranties or guarantees, including warranties of merchantability or fitness for a particular purpose. The above disclaimer of liability does not apply beyond the extent that applicable law disallows the exclusion of implied warranties.
8. Defense against Claims
Smartstock undertakes to defend the Customer against any and all claims lodged by an unaffiliated third party asserting that the Product infringes their patent rights, copyright, moral rights, or trademark rights, or claims of unlawful use of their trade secrets.
The Customer shall defend the interests of Smartstock against any and all claims lodged by an unaffiliated third party asserting that the Customer Data, Customer Solution, Non-Smartstock Products or services which the Customer provides, directly or indirectly, in connection with the use of the Product, violate their patent rights, copyright, moral rights, or trademark rights, or unlawfully use their trade secrets, or where such claims arise from any violation of the Fair Use rules.
Smartstock’s obligations under A above shall not apply if the claim or court order relates to:
i. any Customer Solution, Customer Data, Non-Smartstock Products, modifications made by the Customer to the Product, services or materials provided or made available by the Customer as part of its use of the Product;
ii. the Customer connecting the Product with Customer Data or a Non-Smartstock Product, business processes or data, or damages based on the value of such Customer Data, a Non-Smartstock Product, business process or data;
iii. the Customer’s use of the Smartstock trademark without first obtaining express written consent from Smartstock or the Customer’s use of the Product after Smartstock has notified the Customer of the need to cease such activities in connection with a third party claim;
iv. distribution by the Customer of the Product to non-associated third parties or use of the Product to the benefit of such third parties; or
v. Products made available free of charge.
If Smartstock reasonably concludes that a claim within the meaning of Clause 8.B.i above may result in a ban on the use of the Product by the Customer, then Smartstock shall:
i. obtain the right for the Customer to continue to use the Product; or
ii. modify the Product or replace the Product with its functional equivalent, and then notify the Customer of the necessity to cease the use of the previous version of the Product. If the above options are not commercially justified, then Smartstock may terminate the Customer’s right to use the Product and then return all advances paid for unused rights under the Subscription.
Should any of the claims set out in Clause 8 hereof be communicated to it, either Party shall immediately notify the other Party of such claim.
The Party seeking protection must give the other Party sole control over the conduct of the defense and any possible settlement of the claim, and provide the other Party with reasonable assistance required to defend the claim.
The Party providing protection shall refund to the other Party its legitimate running costs arising from supplying such assistance and pay the amount of any resulting adverse final judgment or settlement. Under this clause, the Parties have the appropriate rights of defense and the awarded or agreed payments (or from a settlement which the other Party accepts) replace all the indemnification rights or similar rights arising from the provisions of applicable law or universal law. In addition, the Parties waive the exercise of such rights under general or statutory law.
9. Limitation of Liability
Please note that demand forecasting and purchase recommendation cannot accurately predict what will happen to the Customer’s business in the coming days, weeks, months, or years; for this reason, Smartstock Services provide only estimates generated by algorithms implemented in the Product.
Consequently, Smartstock does not guarantee the accuracy of the content delivered by Smartstock Services and shall not be liable for any damages or losses of any kind arising from or in any way connected with the use of the Product, including the generated recommendations.
A. The Limit
The aggregate liability of either Party for any claims arising from the use or provision of Smartstock Services shall be limited to compensation for direct damages up to the maximum amount paid under this Agreement for Smartstock Services during the period of 12 months preceding the date when the cause of the claim arises; with the proviso that, in no event whatsoever shall the aggregate liability of either Party in respect of any of Smartstock Services exceed the amount paid for such Smartstock Services during the Subscription Term.
Smartstock’s liability for Products offered free of charge shall be limited to compensation for direct damages in the maximum amount of PLN 1,000.00 (one thousand Polish zloty).
B. Exclusion of Liability
Neither Party shall be liable for loss of profit or revenue, or for punitive, special, incidental or consequential damages, for business interruptions or loss of commercial information, even if it was notified of the possibility of their occurrence or they were foreseeable to a reasonable extent.
In addition, Smartstock shall not be liable for damages resulting from:
i. incorrect data being supplied by the Customer at the Order placement stage or in the course of using Smartstock Services;
iii. inability to use Smartstock Services correctly due to technical limitations, including the speed of data transfer or incorrect operation of the device used by the End User;
iv. lack of access to the Services for reasons beyond the control of Smartstock.
C. Exceptions to the restrictions
The limitations of liability set out in this clause apply to the maximum extent permitted by applicable law, but do not apply to: (1) the Parties’ obligations to defend claims or (2) infringements of the intellectual property rights of the other Party.
10. Security of Data Entrusted to Smartstock in Connection with the Provision of Services as Part of Smartstock Services
A. Customer Data
The data necessary to provide Smartstock Services shall remain the property of the Customer, who shall be its Administrator.
After 7 days from the termination of the contract for the provision of Smartstock Services, the data entered by the Customer shall be irretrievably deleted, without any possibility of its recovery.
B. User Data
Data on the End Users using Smartstock Services fed into the Account in order to enable their identification will be stored by Smartstock in accordance with the provisions of applicable data protection laws, including but not limited to the Regulation of the European Parliament and of the Council (EU) 2016/679 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 (hereinafter “GDPR”).
Users’ data will be processed to the extent necessary for:
i. granting access to Smartstock Services under Article 6.1(b) GDPR in performance of the contract for the provision of Smartstock Services for a period not longer than the period of service provision or validity of the User’s access rights;
ii. considering complaints or establishing, investigating or defending claims—under Article 6.1(f) GDPR, for a period equal to the statute of limitations on respective claims;
iii. performance of obligations required by law—under Article 6.1(c) GDPR, for the period prescribed by law;
iv. compiling statistics or improving the quality of services provided in accordance with Article 6.1(f) GDPR for no longer than the period of service provision.
The Customer takes full responsibility for providing Smartstock with End User data and shall be required to inform the individual Users of Smartstock Services of the processing of their data by Smartstock and the terms and conditions of the use of Smartstock Services. Providing End User data is necessary in order to grant access to Smartstock Services.
C. Access to the Data
Apart from Smartstock, data access can be granted to external software, network, hosting and other service providers indispensable for the provision of Smartstock Services, and for sending information via a server for statistical purposes in order to offer the Customer or User better and more personalized functions and navigation. The data may also be made available to entities other than those indicated above, who have access rights under applicable laws, e.g. public authorities.
D. Data Security
All data stored by Smartstock shall be protected and secured against external interference and against unauthorized internal access (i.e. against access by unauthorized Smartstock employees).
The data shall be stored by Smartstock on servers fitted with professional voltage support systems and additional data backups shall be created.
E. End Users’ Rights Regarding the Processing of Their Data
With regard to the processing of personal data concerning them, which may constitute the subject of personal data protection, the End User has the right to access his/her data and the right to have such data rectified, erased, the right to restrict the processing thereof, the right to transfer such data, the right to object, the right to withdraw consent at any time without impact on the lawfulness of processing based on consent before its withdrawal, as well as the right to lodge a complaint with the competent supervisory authority (in Poland: the President of the Office for Personal Data Protection).
Any complaints about the Smartstock Services provided hereunder may be reported under the terms of support services or at:
i. the email address: firstname.lastname@example.org
ii. or in writing to the address of Smartstock (ul. Dąbrowskiego 77A; 60-529 Poznan, Poland)
The complaint should contain the contact data of the complainant, as well as a detailed description and indication of the reasons for the complaint.
In a situation where the complaint is not covered by technical support, it will be considered by Smartstock within 14 days from the date of receipt of the notification.
Smartstock Sp. z o. o.
ul. Dąbrowskiego 77A
60-529 Poznan, Poland
Notifications to the Customer shall be sent to the address indicated in the Customer Order as its contact address for delivery of notifications. Smartstock may send notifications and other information to the Customer by email or in other electronic form.
B. Transfer of Rights and Obligations
The Customer may not transfer any of its rights or obligations under this contract in whole or in part or transfer any licenses hereunder without the consent of Smartstock.
The Parties mutually agree that Smartstock shall be entitled, to the extent and at any time in its own discretion, to transfer all or a part of its rights and obligations to any third party, without any obligation to obtain consent from the Customer. Smartstock shall inform the Customer in writing about the transfer of all or part of its rights and obligations arising from this Agreement.
If any part of the Agreement is declared unenforceable, the remaining provisions shall remain in force.
E. No Representation Relationship
F. Third Party Rights
G. Governing Law and Jurisdiction
H. Entire Agreement
I. Survival of Provisions
J. Force Majeure
Neither Party shall be liable for any failure to comply due to causes beyond its control (such as fire, explosion, power failure, earthquake, flood, cloudburst, strike, embargo, negotiations between employer and employees, actions of state or military bodies, war, acts of terrorism, including cyberterrorism, random events, acts or omissions of ICT network operators, acts or omissions of governmental authorities or administrative units, including the adoption of an act of parliament or the establishment of regulations or other legislative enactments affecting the provision of Smartstock services). This sub-clause, however, shall not apply to the Customer’s payment obligations.