General Agreement Terms.
§ 1 GENERAL PROVISIONS
- In order to avoid any doubt, Marketing Engineers Group Sp. z o.o. is hereinafter referred as “Marketeers”.
- These General Agreement Terms (GAT) apply as stated below if General Service Agreement concluded by Marketeers and the Client is not signed. In the event of a conflict between the provisions of these GAT and the provisions of General Service Agreement, provisions of General Service Agreement shall prevail.
- In the event of a conflict between Part II of the General Service Agreement and the Order, the content of the Order is decisive. In the event of a conflict between Part I of the Agreement and the Order, the content of the Order is decisive as long as the Order has been signed by the Parties/accepted in accordance with paragraph 4 below.
- Any deviations from GAT are admissible by indication in the Schedule 2. to the Agreement. Those provisions may be subject to exclusion from use, changed or added by specifying the content of the amended or additional provision.
- Individual Services are implemented on the basis of the Order. Each order must be previously accepted by Marketeers. The order will be considered as effective at the time of submission by the Parties’ signatures for its content or as a result of the acceptance of the order by e-mail. The e-mail acceptance is effective when the persons entitled to from each of the Parties exchanged an attachment in the form of a fixed content of the order, and Marketeers confirmed its final content. For the effectiveness of the order, it is required to submit the statements referred to in this paragraph by the person authorized to conclude contracts by the Party or person indicated in paragraph 7 Agreement Terms.
- Prior to the implementation of a Service, the Client shall specify the expectations regarding the scope thereof and present them to Marketeers. Specification of the expectations will be enclosed to the Order.
- The Client undertakes that for the duration of this Agreement and for a period of two years from the date of its dissolution, expiry or termination, he shall not attempt, directly or via any other entity or person, to acquire or attempt to acquire for the purpose of employment or for the purpose of establishing another type of contractual relationship, any of Marketeers’ employees or associates. In the event of a breach of the above undertaking, the Client shall pay Marketeers a contractual penalty in the amount of EUR 20,000.00 (say: twenty thousand euros) for each breach. The reservation of the above penalty does not exclude the possibility of claiming compensation over and above the penalty amount.
§ 2 RESPONSIBILITIES
- Marketeers will provide the “Services” (described by the Orders) to the Client as an independent contractor and not as the Client’s employee, agent, partner or joint venturer. Neither the Client nor Marketeers have any right, power or authority to bind the other.
- Marketeers may subcontract portions of the Services to other service providers, who will not deal with the Client directly.
- Marketeers will not assume any management responsibilities in connection with the Services. Marketeers will not be responsible for the use or implementation of the output of the Services (“Service Output”).
- The Client shall assign a qualified person to oversee the Services. The Client is responsible for all management decisions relating to the Services, the use or implementation of the output of the Services and for determining whether the Services are appropriate for the Client’s purposes.
- The Client shall provide (or cause others to provide) to Marketeers, promptly, the information, resources and assistance (including access to records, systems, premises and people) that Marketeers reasonably require to perform the Services.
- To the best of the Client’s knowledge, all information provided by the Client or on the Client’s behalf (“Client Information”) will be accurate and complete in all material respects. The provision of Client Information to Marketeers will not infringe any copyright or other third-party rights.
- Marketeers will rely on Client Information made available to Marketeers and, unless Marketeers expressly agree otherwise, will have no responsibility to evaluate or verify it.
- The Client shall be responsible for the Client’s personnel’s compliance with the Client’s obligations under this Agreement.
- The Client warrants that have the authority to provide Personal Data to Marketeers in connection with the performance of the Services and that any Personal Data provided to Marketeers has been processed in accordance with applicable law.
- Neither the Client nor Marketeers shall be liable for breach of this Agreement (other than payment obligations) caused by circumstances beyond the Client’s or Marketeers’ reasonable control.
- Marketeers may charge additional professional fees if events beyond Marketeers’ control (including the Client’s acts or omissions) affect Marketeers’ ability to perform the Services as originally planned or if the Client ask Marketeers to perform additional task.
§ 3 LIMITATIONS
- The Client (and any others for whom Services are provided) may not recover from Marketeers, in contract or under statute or otherwise, any amount with respect to loss of profit (lucrum cessans) or consequential, incidental or indirect damages in connection with claims arising out of this Agreement or otherwise relating to the Services, whether or not the likelihood of such loss or damage was contemplated.
- The Client (and any others for whom Services are provided) may not recover from Marketeers, in contract, under statute or otherwise, aggregate damages in excess of 2 times the fees actually paid for the Services that directly caused the loss in connection with claims arising out of this Agreement or otherwise relating to the Services.
- If Marketeers are liable to the Client (or to any others for whom Services are provided) under this Agreement or otherwise in connection with the Services, for loss or damage to which any other persons have also contributed, Marketeers’ liability to the Client shall be several, and not joint, with such others, and shall be limited to Marketeers’ fair share of that total loss or damage, based on Marketeers’ contribution to the loss and damage relative to the others’ contributions. No exclusion or limitation on the liability of other responsible persons imposed or agreed at any time shall affect any assessment of Marketeers’ proportionate liability hereunder, nor shall settlement of or difficulty enforcing any claim, or the death, dissolution or insolvency of any such other responsible persons or their ceasing to be liable for the loss or damage or any portion thereof, affect any such assessment.
- The Client shall make any claim relating to the Services or otherwise under this Agreement no later than by the expiry of the applicable statute of limitations.
- The limitations will not apply to losses or damages caused by Marketeers’ willful misconduct or to the extent prohibited by applicable law.
- To the fullest extent permitted by applicable law and professional regulations, the Client shall indemnify Marketeers against all claims by third parties (including the Client’s affiliates) and resulting liabilities, losses, damages, costs and expenses (including reasonable external and internal legal costs) arising out of the third party’s use of or reliance on any Service output disclosed to it by or through the Client or at the Client’s request. The Client shall have no obligation hereunder to the extent that Marketeers have specifically authorized, in writing, the third party’s reliance on the Service Output.
§ 4 CONFIDENTIALITY
- Except as otherwise permitted by this Agreement, neither of the Parties’ employees may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary (“Confidential Information”). Either of the Parties’ employees may, however, disclose such information to the extent that it:
- is or becomes public other than through a breach of this Agreement,
- is subsequently received by the recipient from a third party who, to the recipient’s knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information,
- was known to the recipient at the time of disclosure or is thereafter created independently,
- is disclosed as necessary to enforce the recipient’s rights under this Agreement, or
- must be disclosed under applicable law, legal process or professional regulations.
- Either of the Parties’ employees may use electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement.
- Each Party shall be responsible for maintaining the confidentiality of other Party Confidential Information.
- The Parties undertake not to disclose Confidential Information of the other Party for the duration of the Agreement, as well as for the period of 3 years after its termination, regardless of the reason.
§ 5 INTELECTUAL PROPERTY RIGHTS
- Marketeers may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) that Marketeers own in performing the Services. Notwithstanding the delivery of any Service Outputs, Marketeers retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any working papers compiled in connection with the Services (but not Client Information reflected in them).
- Upon payment for the Services, the Client may use any Materials included in the Service Outputs, as well as the Service Outputs themselves as permitted by this Agreement.
§ 6 PROTECTION OF PERSONAL DATA
- For the purposes of the Agreement:
- “Personal Data” shall have the meaning set out in 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 (“GDPR”).
- “Data Protection Regulations” shall have the following meaning: GDPR, national (Polish) regulations, EU regulations, directives, decisions and guidelines regarding data protection and privacy.
- In connection with the performance of the Services, each Party shall comply with its requirements and principles of Personal Data protection set out in the Data Protection Regulations.
- If the Client entrusts Marketeers with the Personal Data for processing, the Parties undertake to conclude, prior to the data processing by the Marketeers, applicable data processing agreement.
§ 7 TERM AND TERMINATION
- This Agreement applies to the Services whenever performed (including before the date of this Agreement).
- This Agreement shall terminate on the written request. Marketeers as well as the Client may terminate it, or any particular Services, earlier upon 30 days’ prior written notice to the other (if not stated otherwise in the Order). In addition, Marketeers may terminate this Agreement, or any particular Services, immediately upon written notice to the Client if Marketeers reasonably determine that Marketeers can no longer provide the Services in accordance with applicable law or professional obligations. The Parties allow the possibility of terminating a given Order without terminating the Agreement – the provisions of this paragraph shall apply accordingly.
- The Client shall pay Marketeers for all work-in-progress, Services already performed, and expenses incurred by Marketeers up to and including the effective date of the termination of this Agreement.
- Parties’ respective confidentiality obligations under this Agreement shall continue for a period of two years following the termination of this Agreement. The other provisions of this Agreement that give either of Marketeers rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement, except for the cases where a legal term is expressly provided by law.
§ 8 FINAL PROVISIONS
- This Agreement applies to the Services whenever performed (including before the date of this Agreement). The Polish law is applicable to the Agreement.
- Any dispute relating to this Agreement or the Services shall be subject to the exclusive jurisdiction of the courts of Poland competent for Marketeers’ registered seat, to which each of Marketeers agrees to submit for these purposes.
- This Agreement constitutes the entire agreement between Marketeers as to the Services and the other matters it covers, and supersedes all prior agreements, understandings and representations with respect thereto, with the exception of the Non-Competition and Non-Disclosure Agreement concluded by the Parties, unless their provisions coincide.
- If any provision of this Agreement (in whole or part) is held to be illegal, invalid or otherwise unenforceable, the other provisions shall remain in full force and effect.
- Changes to this Agreement and Orders shall be made in writing on penalty of null and void.
- The Agreement has been made in two identical copies, one copy for each of the Parties.
- Schedules to the Agreement and Orders constitute integral parts of the Agreement.