GENERAL TERMS OF SALE AND SERVICES MS POS POLAND SP. Z O.O.

 

Definitions

Agreement – each written sales agreement or order concerning sale of the Products or provision of the Services

Product – MS POS software and other products offered in the Pricelist or Commercial Offers

Service – an MS POS service specified in the Pricelist or the Commercial Offer, as well as any other MS POS services provided by MS POS for the benefit of the Client, in particular, programming, consulting or maintenance services (including a service subject to conditions of Hotline services)

Client – an entity being a final recipient of the Products or the MS POS Services

User – a single access point to software, in particular servers, computers, devices, mobile, workstations, POS terminals and virtual machines of the Client

Partner – an entity accepted by MS POS, authorised to distribution of the licensed Products, purchasing the Products or the Services under commercial cooperation for their further resale to the final Clients, or providing agency services with regard to sale of the Products or the MS POS Services

 

Agreements and Orders

1. Delivery of the Products or provision of the Services is provided by MS POS only on the basis of written Agreements determining at least the range of services.
2. Conditions of sale of the Products or provision of the Services, including time limits and prices, are determined by these General Terms, unless otherwise decided in a separate written Agreement.
3. Agreements are signed using standard agreement or order forms of MS POS.

Every exemption from the currently binding form should be substantiated.

4. Any changes to signed Agreements, including changes in the scope of submitted orders or execution of any additional orders, require conformity with the same principles and formal conditions as for signing the Agreement.
5. In the case of deliveries of the Products provision of the Services using the Partner, the Partner is obliged to present to the Client full and accurate information on the Products and the Services. This includes presenting to the Client any terms of using the Products and the Services, in particular delivery of the General terms of sale and provision of MS POS services and General Terms of the Licence, before or at the time the Product or the Service is purchased by the Client.

 

Delivery of the Products

1. Delivery of the Product is provided within 7 days of the date of submitting the Order, unless a different date is fixed in the Agreement or the Commercial Offer.
2. Delivery of the Product includes – depending on characteristics of the Product resulting from the Price List or the Commercial Offer – transfer of licence keys or physical delivery of a carrier with software.
3. In the case of deliveries provided via the Partner, delivery of the product is determined by transfer of the Product to the Partner. MS POS is not liable for effects of any default of the Partner in respect of a further delivery.
4. Delivery of the Product is confirmed with the handover report.

If the handover report cannot be provided, a delivery is confirmed by the first installation of the Product by the User.

5. Delivery of the Product does not include installation of the Product.

 

Conditions of provision of the Services

1. The Services are provided remotely, unless the character of the Service excludes its remote provision, or the Parties expressly decided otherwise in the Agreement.
2. Any documentation and current communication between MS POS and the Client – except for situations when the written form or another form is required – is handled through a provided electronic communication platform – Jira. MS POS, depending on the Client’s needs, will provide up to 10 accesses to the communication platform. The Client is obliged to pay for additional accesses in accordance with the applicable MS POS price list.
3. The Client is obliged to track entries in the communication platform on an ongoing basis and immediately report any comments and reservations. MS POS is not responsible for effects of the lack of the Client’s communication activity via the platform.
4. Communication via the electronic platform is not equivalent to acceptance of documentary forms by the Parties, which means that, unless the Agreement does not explicitly provide otherwise, entering into Agreements, change of its significant terms, as well as termination always requires a written form.
5. MS POS has the right to delegate provision of all the Services to their subcontractors and co-operators without the need to obtain an additional consent.
6. The condition for provision of the Services by MS POS is:
7. regular and effective cooperation between the Client and MS POS in each case, when it will be necessary for performance of any activities under the Service by MS POS.
8. immediate transfer of information, and adopting decisions by the Client, including acceptances and reporting comments, necessary for correct performance of the Service (not later than within 2 working days, unless agreed otherwise)
9. other – if it results from circumstances, or the content of a separate Agreement provides that a failure to meet the condition objectively excludes or significantly hinders provision of the Service.
10. Acceptances are required only when provided for in the Agreement.

Completion of the acceptance or the lack of reasonable comments of the Client provided no later than 5 working days of the day on which result of works were provided, is equivalent to acceptance of the Service without reservations, unless the Agreement states otherwise.

 

Delays

1. If MS POS, for reasons not controlled thereby, including due to the Client’s or the Partner’s failure to perform any of its obligations, is not able to provide all or some of the Services or deliver the Product, it is entitled to obtain payment of:
2. any amounts resulting from non-returnable expenses incurred by MS POS
3. a part of the agreed remuneration in the amount proportional to a part of the Services actually provided
4. If MS POS is not able to deliver the Product or the Service in the agreed time for reasons not controlled thereby, including due to the Client’s or the Partner’s failure to perform any of its obligations, the deadline will be accordingly postponed for the duration of the delay.

If, for the above mentioned reasons, the initial deadline is exceeded by more than 6 weeks, MS POS, after sending a written request for the Client to remove the reasons for the delay, is entitled to withdraw from the Agreement, unless the Agreement provides otherwise.

3. If the delivery of the Product or performance of the Service by MS POS is delayed by more than 6 weeks the Client, after sending a prior written request to perform the work, may terminate the Agreement, excluding any further claims, unless the Agreement states otherwise.

 

Prices

1. Prices of the Products and the Services of MS POS are specified in the Pricelists and the Commercial Offers as at the date of submission of the order for the Product or the Service.
2. Prices of the Products are net prices.
3. Any rates of remuneration for the Services are net rates for works executed on the Working Days, i.e. from Monday to Friday in standard working hours of MS POS (8.00 a.m. to 4.00 p.m.), except for statutory holidays in Poland.

Provision of works outside the Working Days is possible only upon the Client’s request accepted by MS POS, and is always settled according to separate rates specified by MS POS for such works.

4. Prices of the Products and the Services are exclusive of compensation for transferring intellectual property rights, unless the Pricelist or the Agreement states otherwise.
5. Should the prices be expressed in PLN, they should be converted into EUR according to the sell rate as at the date of issuing the invoice.

 

Travel costs and additional remuneration

1. Costs of commuting, travel, accommodations, allowances, etc. incurred by MS POS directly in relation to the execution of the Services will be borne by the Client.
2. For the time of travel directly related to the execution of the Services MS POS collects additional remuneration in the net amount of PLN 150 for each started hour of the specialist’s travel for travels within the country, and 25% of the rate in case of abroad travels, unless other rate results from a separate Agreement, an up-to-date Price List or “Terms of payment”.
3. In the case of unforeseen problems or costs arising during provision of the Services beyond the control of MS POS, MS POS should inform the Client to enable him to take up remedial actions and will be entitled to charge additional fees covering additional time and additional costs necessary for execution of the Service to the Client.

 

Terms of payment

1. Payment for the products and the Services of MS POS is made on the basis of VAT invoices.
2. The acceptable payment currencies are PLN and EUR.
3. The invoice payment term is 14 days, unless an invoice or a separate Agreement expressly defines otherwise.
4. MS POS has the right to demand advance payment for all or part of the price prior to making a delivery or performing the Service.

The advance payment is made on the basis of a pro forma invoice and after the payment is credited to the account of MS POS it will be documented with an appropriate invoice.

5. MS POS is entitled to demand payment and issue an invoice for 80% of the agreed price at the time of delivery of the Products or Services to the Client for testing. The remaining 20% ​​becomes due upon acceptances after which MS POS will issue an invoice or, if the Agreement does not require formal acceptances, it becomes due upon completion of testing without defects affecting the operation of the Products or Services, after which MS POS will issue an invoice.
6. All prices include Value Added Tax in the amount applicable at the time of issuing the invoice.
7. MS POS is not obliged to examine the actual condition concerning the place of supply of the Service.

In the case of Orders concerning the Services provided outside the territory of the Republic of Poland, to determine proper taxation rates and principles, it will be necessary for the Client to present a statement concerning the intended use of these Products and Services. If no statement was provided, MS POS has the right to invoice and settle the provided Service as a Service provided in Poland, even if it can be concluded from circumstances not confirmed by a required formal documentation that intended use of the Service was non-domestic.

The Client assumes sole responsibility for the consequences of submitting an untrue, incomplete, or out-of-date statement. In such case, MS POS has the right to demand compensation of a resulting damage in the full amount, as well as request payment of calculated taxes or their equivalent.

8. If local law, regulations, or any state tax authority outside of Poland requires any taxes to be withheld from payments made by the Client or the Partner for the benefit MS POS, and if the Client or the Partner immediately deliver to MS POS an official confirmation of deduction of taxes at source or other documents required by MS POS to submit a request for relevant tax deduction, the Client or the Partner may deduct such taxes from the amount due to MS POS and pay them to the tax authority.

Taxes withheld, as described above, relate to deducting taxes required by tax authorities only from payments for the benefit of MS POS. They are exclusive of any taxes withheld incurred by the Partner due to payments made for the benefit of the Partner by the Clients. Such taxes constitute the Partner’s financial liability.

The Client and the Partner will make sure that any taxes withheld are minimised to the extent permitted by applicable legal regulations.

9. In the case of delay in payment, MS POS may claim interest for the delay in commercial transactions.
10. In the case of delay in payment exceeding 5 working days, MS POS has the right to immediately stop further works until: receipt of the entire payment and agreeing new completion terms.
11. The Client or the Partner is not entitled to suspend or delay payment of any amounts due to MS POS under disputes, counterclaims or deductions, which he may claim from MS POS.
12. Refund of travel costs and payment of remuneration for a travel related to performance of the Services are made at the latest at the end of each month of the travel, on the basis of the VAT invoice with the attached summary of documented costs incurred by MS POS.
13. The MS POS remuneration will be indexed once a year by the value of the inflation rate published in accordance with Article 94(1)(a). and the Act of December 17, 1998. on old-age and disability pensions from the Social Insurance Fund. Valorisation takes place by notifying the Customer and does not require an amendment to the contract. The adjusted remuneration rate is applicable starting from the next calendar month following the receipt of the notification by the Client.

Copyrights and licences

1. Copyrights, including all titles to pre-configured processes, rights to software supplied by MS POS, rights to any of the Products and results of the Services, including rights to source codes and rights concerning concepts, methods, results of works and other documents belong to MS POS.
2. MS POS grants to the Client a paid, non-exclusive and non-transferrable licence for the Products or results of provided Services, in cases, on the terms and for remuneration specified in the General Terms of the Licence of MS POS and relevant Pricelists and Commercial Offers. The licence is granted on the territory of the Republic of Poland and other countries worldwide.
3. Duration of the Licence results from characteristics of the Product set out in the Price List or the Commercial Offer.

If there are no other provisions: if the licence fee is paid as a single payment, the licence is granted for an indefinite period of time, if the licence fee is cyclical, the licence is granted for a period of 1 year.

Rights to distribution

1. MS POS grants to the Partners a non-exclusive, non-assignable, limited licence for distribution of the licensed Products and Services directly to the Clients.
2. Except for the rights to distribution expressly stated above, MS POS does no grant any additional rights to use and distribute the Products and the Services.

The Partner may not sublicense, rent, lease, borrow, provide commercial hosting services using the licensed Products or Services, nor may he benefit from the licensed Products and Services for internal purposes, unless the Agreement expressly states otherwise.

3. The Partner is obliged to deliver to the Client the full licensed Product. The Partner can install the Product and, if the Agreement states so, may configure and adapt software according to the terms specified in the documentation of the Product.

The Partner is solely responsible for any obligations concerning effects of his configurations or adjustments of MS POS software. This includes each negative impact on documentation or performance of software.

4. The Partner may not reproduce the source code, decompile or uninstall any of the Product or the Service of MS POS.
5. The Partner has no right to modify for the Client licensing conditions of the Products or effects of the Services specified in the General Terms of the Licence.
6. MS POS may, at any time, withdraw the licence for distribution and suspend or end cooperation with the Partner, particularly if the Partner fails to observe terms of cooperation. MS POS’s liability for related damages, as well as any lost benefits, consequential, incidental or indirect damages is excluded.
7. After placing an order, when the Partner receives the Product (appropriate access codes or a carrier) for a given Client from MS POS, the Partner may prepare one copy of the Product in order to distribute the Product to this Client. The Partner may not allow the Clients to use the Product using any licence key belonging to the Partner. The Client may use only those licence and registration keys issued thereby by MS POS.
8. The Partner assumes that MS POS, as a licensor, may contact the Clients at any time, presenting information which MS POS considers appropriate, concerning the Products and the Services, and the Partner will not report any reservations or claims in this respect.
9. The Clients may obtain the Products or the Services from other entities than the Partner, as well as directly from MS POS, in any moment, without notifying the Partner, unless a separate Agreement expressly provides otherwise.

 

Responsibility

1. MS POS liability under the warranty for defects is excluded.
2. MS POS is not responsible for a delay or full or partial non-performance of delivery of the Products or provision of the Services, if it is directly or indirectly caused by reasons not controlled by MS POS, in particular the Client’s or the Partner’s default in meeting obligations presented in these General Terms.
3. Total aggregate liability of MS POS for all damages related to execution of the Services, and sale of the Products, as well as tort liability, is limited on all grounds to a total amount equal to 25 % of the price paid by the Client for the Product or provision of the Service.
4. MS POS liability under lost benefits or consequential, incidental or indirect damages related to the Product or the Service is excluded.

Guarantee

1. MS POS grants warranty for the Product or the result of the Service subject to acceptance, unless the Agreement states so.
2. If there are no separate provisions, the period of the guarantee granted by MS POS is 1 year. The guarantee period runs from the date of delivery of the Product or acceptance of the Service covered by the guarantee.
3. Under the guarantee MS POS undertakes to conduct free-of-charge removal of defects in the Products and the Services, reported during the guarantee period.
4. A warranty claim by the Client requires reference to the number of the received task in the Communication Platform.
5. The guarantee covers correct operation of the Product or the result of the Service, unless incorrect operation results from improper use or other acts or omissions of the User, attributable to his negligence or not.
6. The guarantee is exclusive of services involving changing functions of software or modifications of software resulting from the changing legal or economic situation.
7. MS POS is not liable for adverse effects of any unassisted modification performed by the Partner, the Client, the User, or entities acting on their instructions.
8. MS POS is not responsible for the correctness of operation of standard functions of software and systems supplied by other manufacturers (errors of the System’s standard).
9. Correct operation of software, including the Products and the results of the Services, depends, among others, on functioning of hardware, interaction with other software, configuration and other factors, including human factor, also with regard to the quality and the method of entering data. MS POS does not guarantee the lack of breakdowns, software errors, interferences and conflicts. Breakdowns, software errors, interferences and conflicts may occur regardless of proper performance of duties by MS POS and MS POS bears no responsibility in this respect.

Confidentiality

1. Cooperation is provided according to the principles of mutual confidentiality.
2. In their relations with third persons, the Parties will treat as confidential any information concerning the other Party, including its products, services, rights, strategies, applied procedures and technologies, as well as commercial operations, agreements and documents, moreover, any other information constituting a trade secret, transferred between the Parties, both orally and in writing, including electronically, directly or indirectly related to cooperation between the Parties.

This obligation survives the termination of this Agreement.

3. The obligation of confidentiality shall not apply to:

– MS POS’s use of any data provided thereto by the Partner, related to execution of the transaction with the Client

– a situation when the obligation to disclose information results from the mandatory rules of law and is justified by a request of the judiciary or state administration authority

– information which is publicly available at the time of entering into the Agreement; or become available publicly after entering into the Agreement, provided that it was not disclosed as a result of breach of the Agreement;

– information being in the possession of the Parties prior to its transfer by the other party to the Agreement, provided that it can be proved by objective evidence

– information with regard to which the Parties agree in writing that they should or can be published

4. Neither the Client, nor the Partner, for the period of two years from date of issuing the last invoice by MS POS, will not employ and use services of employees and consultants of MS POS, without a prior written consent of MS POS. In the case of breaching the foregoing provision MS POS has the right to request, accordingly, from the Client or the Partner: a contractual penalty fee in the amount of 200 000,00 PLN per each case of such breach, and apart from this, it has the right to claim compensation exceeding the amount of this penalty on the general terms resulting from the regulations of the Polish law.

 

Personal data

1. MS POS ensures security of data and information at the level consistent with requirements of generally binding regulations, including Regulation of the European Parliament and of the Council (EU) 2016/679 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.
2. MS POS limits the use and collection of data of the Clients to a necessary minimum and will not use obtained personal data in a manner different than for the purposes for which data were provided.
3. If the cooperation requires access to the Client’s data or data processed by the Client, the Client makes these data available to MS POS, excluding any access to personal data.

If it is not possible to provide to MS POS access to data on the terms ensuring no access to personal data, the Client is obliged to notify this fact to MS POS in writing and immediately regulate the principles of processing and protection of personal data in a separate written agreement. The Client is liable for consequences of failure to observe requirements in this respect.

Termination or rescission of the Agreement

1. Unless otherwise provided in a separate Agreement, rescission of the Agreement by any of the Parties on any basis, takes effects ex nunc (i.e. only with regard to a non-performed part of the subject matter of the Agreement).
2. If the Client rescind the Agreement, terminate or annul the Agreement in a different way, without any reasonable cause, MS POS may, without further evidence and without additional call, request payment of the compensation of 25 % of the gross value of the Agreement, regardless of the right to satisfy other claims arising from these General Terms, separate Agreements and generally binding legal regulations.

Final provisions

1. Any contractual relations regulated by these General Terms are subject to the law of the Republic of Poland.
2. Any disputes under this Agreement should be settled by Polish common courts having jurisdiction over the seat of MS POS.
3. Neither the Client, nor the Partner cannot assign any of their rights or obligations resulting from these General Terms, or subcontract a significant part of their rights or obligations to a third party, without a prior written consent of MS POS.
4. Failure to exercise any right or provision included in these General Terms by MS POS does not constitute a waiver this right or provision.
5. Unfeasibility or unlawfulness of one or more provisions of these General Terms resulting from any reasons does not affect the legality or feasibility of the remaining provisions.
6. In any cases not regulated by these General Terms, the provisions of the Civil Code and the Act on copyright and related rights apply.