Terms and conditions of the application
These regulations, hereinafter referred to as "Regulations", set out the terms, scope and conditions for the provision of the Dature Service (previously referred to as Smartstock service) by Smartstock limited liability company based in Poznań (address: ul. Królowej Jadwigi 43, 61-817 Poznań) entered in the register of entrepreneurs by the District Court Poznań - Nowe Miasto i Wilda in Poznań, VIII Economic Department of the National Court Register under KRS number 0000802331, NIP number 7812000413, hereinafter referred to as "Smartstock".
By the wording used in these Terms and Conditions is considered:
"Day" means a calendar day.
"Business day" means a day from Monday to Friday excluding public holidays in Poland.
"Affiliate" means any legal entity that is held by a party, held by a party, or jointly held with a party. "Ownership" means, for the purposes of this definition, more than 50% ownership in an entity.
"Customer Data" means the data provided by the Customer in the format required by Smartstock necessary for the proper provision of Product services, in particular sales history, inventory, commodity indexes, necessary for the proper operation of the Product. Customer data is defined in the Product Documentation.
"End User" is any user to whom Customer provides access to Customer Data made available through the Dature Services or otherwise enables the use of the Dature Services.
"Dature Service"/ "Product" is the Dature Premium or Dature Enterprise service provided by Smartstock, which the Customer orders in the Customer Order.
"Evaluation Version" is an evaluation version, beta version or other type of pre-release or pre-release available feature of the Dature Services made available by Smartstock for the purpose of obtaining Customer feedback on it.
"Subscription" is a registration made for the use of the Dature Services for a given Term specified in the Customer Order. The Customer may purchase several Subscriptions, which may be administered separately and which will be subject to the provisions of a separate Customer Order.
"Validity Period" is the validity period of the Subscription specified in the Customer Order.
"Account" - a set of resources and permissions within the Dature Service assigned to the Customer, through which the Customer or an End User authorized by the Customer may use the provided services.
"Subscription License" (LS) - the right to use the Dature Services under the selected Product for the period and under the terms indicated in this Agreement. LS is assigned on an account activation basis. Details regarding account creation are placed in the Product Documentation.
2 Subject matter of the Agreement, types and scope of services
The subject matter of the Agreement is to grant the Customer access to the Dature Service (Product) operating at the address indicated in the Order, enabling the Customer (including End Users authorized by the Customer) to use the services offered and provided electronically by Smartstock (in accordance with the Order, these Terms and Conditions and other attachments), in particular, services that enable the calculation of demand forecasts and generation of stocking recommendations (depending on the Product listed in the Customer's Order).
3. Signing a contract for Dature Services
The Dature Service Agreement is concluded by acceptance of the completed Customer Order and acceptance of these Terms and Conditions by the Customer. When providing data to complete the Order, the customer is obliged to provide data that is truthful, accurate and up-to-date, not misleading and not infringing on the rights of third parties.
The Customer shall be solely responsible for the content provided by itself or provided by the designated End Users. All content and data sent by third parties authorizing themselves with the data of the Customer or its End User, will be attributed to the Customer.
4. Terms of service
A. Right to use.
Smartstock grants the Customer the right to access and use the Dature Service as further described in the Terms and Conditions. Smartstock reserves all rights not expressly granted to the Customer.
Necessary for the use of the Dature Services is the acceptance by the Customer or its End Users of the terms of the Agreement regarding the Microsoft Azure cloud.
B. Permitted Use.
Customer may use Dature Services only in accordance with the terms of the Order and these Terms and Conditions. Customer may not reverse engineer, decompile, disassemble or circumvent technical limitations on the Product. Customer may not disable, modify or otherwise attempt to circumvent the mechanisms used to measure Customer's use of the Dature Service. The Customer may not rent, lease, lend, resell, transfer or host the Dature Service or any part thereof to or for the benefit of any third party, except as expressly permitted by the provisions of the applicable terms and conditions.
C. End Users.
Customer shall exercise control over access to the Dature Service by End Users. In addition, Customer shall be fully responsible (as for its own act or omission) for End Users' use of the Dature Service in a manner consistent with the Order and the Terms and Conditions. Neither the Customer nor to people accessing the Dature Service through the Customer are allowed to use the Dature Service:
I. in a manner inconsistent with the provisions of the law (laws, regulations), the terms of the Order and the Terms and Conditions;
II. In a manner that violates the rights of third parties;
III. to gain unauthorized access to or interfere with other services, devices, data, accounts or networks;
IV. for the purpose of sending spam or spreading malware;
V. in a manner that may be detrimental to the Dature Service or interfere with the use of the Dature Service by others;
VI. to act to the detriment of Smartstock.
Violation of the provisions contained in the Order or the Terms and Conditions may result in suspension of access to the Dature Service. Smartstock will suspend access to the Dature Service only to the extent and for the duration that it is generally necessary. Unless Smartstock deems it necessary to immediately suspend a particular Dature Service, it will give reasonable advance notice of its intention to do so. The suspension period lasts for the period of clarification of potential doubts.
D. Customer Data.
The Customer is solely responsible for all Data within its Account. Customer shall ensure that Smartstock has all rights in the Data necessary for Smartstock to provide the Dature Service to Customer without infringing the rights of any third party and without otherwise imposing any obligation on Smartstock to Customer or any third party. Smartstock does not now assume, nor will it in the future assume, any obligations with respect to Customer Data or Customer's use of the Dature Service other than those expressly set forth in the Order or the Terms and Conditions or required by law. Customer retains ownership of the Data necessary to use the Dature Service and grants Smartstock a limited, non-exclusive, non-transferable right to use, transmit and distribute the Data to provide the Service to Customer. Smartstock may use Customer Data to improve the Service, statistics and analysis, during and after the Service, at its sole discretion, as long as the disclosed data does not identify the Customer. Customer Data may also be accessed by entities other than Smartstock, in particular, entities whose access rights derive from the Microsoft Cloud Agreement or its provider in accordance with the terms and conditions established by Microsoft, as well as entities whose access to Customer Data is necessary to enable the provision of the Dature Service to the Customer
E. Responsibility for Customer Accounts.
Customer is fully responsible for maintaining the confidentiality of any classified credentials related to Customer's use of the Dature Service, including password and login. Customer must promptly notify Smartstock of any potential misuse of Customer's accounts or credentials and any security breach related to the Dature Service. The Customer assumes all risk of deletion of data, unavailability and interruption of services resulting from circumstances for which the Customer is responsible.
F. Administrative Portal.
Customer will be able to add and remove End Users as described in the Product Documentation.
G. Common data catalog.
When the Customer orders the Dature Service using an e-mail address located in the domain of the organization with which it is associated, the Dature Service adds the Customer to the directory of users using the same e-mail domain. The Customer's data placed in the directory (first and last name/name, date of enrollment, and e-mail address) may be visible to other users of the Dature Services from the e-mail domain of the Customer's organization.
H. Evaluation (Familiarization) Versions.
Smartstock can provide Evaluation Versions of the Dature Service. Evaluation Versions are provided as is, with all defects and as available, and are not covered by the Terms and Conditions, the Technical Support Level or any limited warranties. Familiarization versions are not covered by technical assistance. Smartstock may, at any time and without notice, change or discontinue the provision of the Preview Versions.
I. Licensing of Dature Services.
It is the Customer's responsibility to obtain and assign the appropriate subscription licenses (LS) required to use each Dature Service. Each User who accesses the Dature Service must be assigned an LS per User, unless otherwise specified in the Customer Order. The Customer is not allowed to use individual Dature Services after the expiration of the LS relating to them.
J. Technical conditions.
All technical conditions that allow the Customer or End User to use the Dature Service are described in the Product Documentation.
K. Technical limitations.
Customer must comply with any technical limitations of the Dature Service as described in the Product Documentation provided, enforcing use only in a certain manner. The customer must not attempt to circumvent these restrictions.
L. Changes and availability of the Dature Service.
Smartstock may make changes to any Dature Service for commercial, functional or legal reasons. Smartstock may modify or terminate the Dature Service in any country where governmental authorities have imposed requirements on Smartstock that (1) are not generally applicable to companies operating in that country, (2) constitute circumstances that impede Smartstock from continuing to provide the Dature Service without modification, or (3) lead Smartstock to believe that these provisions or the Dature Service may conflict with such requirements. If Smartstock terminates the Dature Service for reasons related to applicable regulations, Customers will receive a discount equal to the amount paid in advance for the period after the date of termination.
M. Compliance with the law.
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 Dature Service in the course of such business.
Smartstock does not specify whether the Customer Data contains information subject to specific laws. The Customer shall comply with all laws applicable to its use of the Dature Service, including those relating to privacy, personal data, data protection and maintaining the confidentiality of the information transmitted.
Customer is responsible for determining whether the Dature Service is suitable for storing and processing information that is subject to any specific laws or regulations, and for using the Dature Service in a manner consistent with Customer's binding legal obligations. It is the Customer's responsibility to respond to any requests from third parties regarding the Customer's use of the Dature Service.
N. Professional Services.
Any services for configuration, migration and implementation of Smartstock Services that are not covered by the Order or these Terms and Conditions require the conclusion of a separate Professional Services Agreement.
O. Withdrawal of services and functions.
Three months prior to the removal of any significant feature or the discontinuation of the service, Dature will notify the Customer of such step, unless faster removal is required for security, legal or system performance reasons. This does not apply to Evaluation Versions.
5 Acquisition of Services
A. Dature Service Order
Acquisition of the service is based on the Order accepted by the Customer. The Customer declares in advance the purchase of the specified Products to be used during the Term, and agrees to pay in accordance with the terms and conditions described in the Order.
For a limited period of time, Customer may receive a limited Dature Service free of charge under the Subscription in Evaluation Version (the "Limited Offer"). In this case, the provisions on pricing, cancellation fees, payment and data storage may not apply.
Under certain offers, you may modify the number of ordered Dature Services ordered during the Subscription Term. The additional number of Dature Services added to a Subscription will expire upon expiration of that Subscription.
C. Pricing and Payment.
Dature Services are provided for a payment. Payments are due and must be paid in accordance with the terms of the Customer Order.
The price level is based on the ordered Dature Services and the applied Price Formulas included in the Customer Order. Under some offers, the number of Dature Services ordered during the Term may be modified, and the price level may also be adjusted accordingly.
Changes in the price level will not have retroactive effect. During the Subscription Term, the prices of the Dature Services relating to Customer's Subscription will not increase as compared to the prices included in Customer's Order at the time Customer's Subscription began. Exceptions are items with prices marked in the Customer Order as provisional and Evaluation Versions. All prices and payment terms are subject to change at the beginning of each Subscription renewal period. Changes in prices and payment terms will be communicated to the Customer before the expiration of the Term in the form of a new Customer Order for the next Term.
Customer may declare in the Customer Order that it wishes to automatically renew the Subscription for the next Subscription Term. Failure to select the automatic renewal option in the Customer Order shall result in termination of the Subscription as of the Term Expiration Date contained in the Customer Order. Customer may change this election at any time during the Term, but no later than 14 days prior to the Expiration Date listed in Customer's Order. Prior to the expiration of the Term, Smartstock will notify the Customer of the upcoming Expiration Date and provide the Customer with an Order for the next Term under the terms and conditions contained in such Order.
In the case of a Limited Offer, renewal may not be allowed.
Customer must pay any applicable value added taxes, sales taxes, income taxes or other transaction taxes, wages, fees, surcharges or statutory charges or similar amounts required in relation to the use of the Dature Service and which Smartstock may collect from Customer under applicable law.
The Customer shall be fully responsible for any and all legal transaction taxes and other taxes required by law, including taxes related to the distribution or provision of the Products to the Customer's Affiliates.
6 Duration, suspension and termination
A. Contract term and termination.
The contract for the use of Dature Services is valid for the period indicated on the Customer Order.
B. Termination of Subscription.
If the Customer terminates the Subscription to Dature Services during the Term, the terms of any refunds of payments made by the Customer shall not apply, and in the case of monthly payments, the Customer shall pay the amounts due for payments for the remainder of the Term in accordance with the Customer Order.
C. Restricted Offers.
Smartstock may terminate the Limited Offering Subscription at any time during the Term with immediate effect and without notice.
D. Suspension of benefits.
Smartstock may suspend Customer's use of the Dature Services if:
I. there is a legitimate need to prevent unauthorized access to Customer Data;
II. The customer does not respond within a reasonable period of time to a report of an alleged violation of third-party rights;
In the case of Restricted Offers, the Subscription becomes inactive due to the Customer's failure to use the Dature Services as specified in the Customer Order. If one or more of the above conditions occur:
I. in the case of Limited Offers - Smartstock may immediately suspend Customer's use of the Dature Services or Subscription and account without notice;
II. for all other Subscriptions - the suspension will be effective for the smallest necessary part of the Dature Services and only during the time when the circumstance or necessity exists.
Smartstock will notify the Client in advance of the suspension unless, in Smartstock's opinion, there is a need for immediate suspension.
Smartstock will notify the Client of a suspension due to non-payment of dues at least 14 days before the suspension is implemented.
If the Customer does not fully remove the reasons for suspension within 30 days from the date of suspension, Smartstock may terminate the Customer's Subscription and delete the Customer Data without retaining the data retention period.
In addition, Smartstock may terminate Customer's Subscription if Customer's ability to use the Dature Services is suspended more than twice during any 12-month period.
In the event of suspension for the reasons mentioned above or termination of the terms of service by Smartstock, the Customer is obliged to pay all payments in accordance with the Order - if he has not previously paid them.
7. Warranty and guarantee.
A. Limited warranty
Smartstock warrants that for the Term, the Dature Service will operate substantially as described in the Product Documentation provided. If the Product fails to meet the terms of this warranty, Smartstock will, at its sole discretion, make repairs.
In terms of the appropriate level of service provision, Smartstock will provide technical support to the Customer under the terms of the Technical Support Service Level Agreement.
B. Limited Warranty Disclaimers.
This limited warranty is subject to the following limitations:
I. liability under any implied warranty, guarantee or other assurance that cannot be excluded by law shall apply only for the Term;
II. does not cover problems caused by accident, abuse and use of the Products in a manner inconsistent with this Agreement, the Terms and Conditions, the Order or the Product Documentation and instructions provided by Smartstock, or events arising from causes beyond Smartstock's control, such as interruptions in the Customer's access to the Internet or service interruptions caused by the failure of third parties to meet their obligations;
III. does not apply to the Evaluation Versions or the Limited Offering.
C. Disclaimer of liability.
Subject to this Section, Smartstock makes no express, implied, statutory or other warranties or guarantees, including warranties of merchantability or fitness for a particular purpose. The above rejection of liability shall not apply to the extent that the applicable law does not permit it.
8. Claims defense
Smartstock agrees to defend the Customer against any claims made by unaffiliated third parties for infringement by the Product of their patent, copyright or trademark rights or for unlawful use of their trade secrets.
The Customer shall defend the interests of Smartstock against any claims made by unaffiliated third parties that the Customer Data, the Customer Solution, Non-Smartstock Products or services that the Customer provides directly or indirectly in connection with the use of the Product infringes their patent, copyright or trademark rights or unlawfully uses their trade secrets, or such claims arise from a violation of the Permitted Use Policy.
Smartstock's obligations set forth in Section A above will not apply if the claim or court judgment is for:
I. Any Customer Solution, Customer Data, Non-Smartstock Products, modifications made by Customer to the Product, services or materials provided or made available by Customer in the use of the Product;
II. Customer's combination of the Product with Customer Data or Non-Smartstock Product, data or business processes, or compensation based on the value of such Customer Data, Non-Smartstock Product, data or business process;
III. Customer's use of the Dature trademark without prior express written permission from Smartstock or Customer's use of the Product after Smartstock has notified Customer to cease such activities in connection with a third party claim;
IV. Customer's distribution of the Product to unaffiliated third parties or use of the Product for the benefit of such third parties; or
V. Products provided free of charge.
If Smartstock reasonably believes that a claim under Section 8.B.i. above may result in a prohibition of Customer's use of the Product, then Smartstock:
I. obtain for the Customer the right to continue using the Product either
II. modify the Product or replace the Product with its functional equivalent, and then notify the Customer to stop using the previous version of the Product. If the above options are not commercially reasonable, then Smartstock may terminate the Customer's right to use the Product and then refund all advances paid for unused Subscription rights.
In the event of the emergence of claims specified in the provisions of Section 8 of the Regulations, the Parties are obliged to immediately notify the other party.
The party seeking protection must give the other party exclusive control over the conduct of the defense and any settlement of the claim, and provide the other party with reasonable assistance required to conduct the defense of the claim.
The party providing protection shall reimburse the other party for reasonable out-of-pocket expenses resulting from the provision of such assistance and shall pay the amount resulting from an unfavorable final court decision or settlement. The parties' respective rights of defense and payments awarded or agreed upon (or from a settlement that the other party accepts) under this section shall supersede any indemnification rights or similar rights under state or common law. In addition, the parties waive the exercise of such rights under common or state law.
9. Limitation of Liability.
Keep in mind that demand forecasting and inventory recommendation cannot accurately predict what will happen to a customer's business in the coming days, weeks, months or years - for this reason, Dature Services only provides estimates generated by algorithms implemented in Product.
Consequently, Smartstock does not guarantee the accuracy of the content provided by the Dature Service and shall not be liable for damages or losses of any kind arising out of or in any way related to the use of the Product, including generated recommendations and forecasts.
The aggregate liability of each party for any claim arising out of the use or provision of the Dature Services shall be limited to the value of direct damages up to the maximum amount paid hereunder for the Dature Services during the 12 months prior to the cause of action; provided that in no event shall the aggregate liability of any party for any Dature Services exceed the amount paid for such Dature Services during the Subscription Term.
Smartstock's liability for Products offered free of charge is limited to the value of compensation for direct damages in the maximum amount of PLN 1.000,00 (one thousand zlotys).
B. Exclusion of liability.
Neither party shall be liable for loss of revenue or retaliatory, special or consequential damages, among other things. from indirect, special, incidental, or consequential damages, nor for lost profits or revenues, business interruption, or loss of business information, even if it was notified of the possibility of their occurrence or they were reasonably foreseeable.
In addition, Smartstock does not assume any liability for damages arising in connection with:
I. providing incorrect data by the Customer at the Order stage or during the use of Dature Services;
II. use of the Services by the Customer or its End Users in a manner inconsistent with applicable law, the Regulations, or accepted good morals in this regard, including for damages arising in connection with the Customer's lack of adequate safeguards against interception of authorization data or the Customer's making such data available to unauthorized or untrustworthy persons;
III. inability to properly use the Dature Services due to technical limitations, including data transfer speeds or malfunction of the device used by the End User;
IV. lack of access to the Services for reasons beyond Smartstock's control.
C. Exceptions to restrictions.
The limitations of liability listed in this section shall apply to the maximum extent permitted by applicable law, but shall not apply to: (1) the parties' defense obligations or (2) infringement of the other party's intellectual property rights.
10. Security of data entrusted to Smartstock in connection with the provision of services under the Dature Services.
A. Customer Data.
The data necessary for the provision of Dature Services remain the property of the Customer, who is their Administrator.
After 7 days from the termination of the Dature Services Agreement, the data entered by the Customer is irretrievably deleted, with no possibility of recovery.
B. User Data.
Data concerning End Users using the Dature Services entered in the Account and enabling their identification will be stored by Smartstock in accordance with data protection regulations, in particular with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016. on the protection of individuals with regard to the processing of personal data and on the free movement of such data and the repeal of Directive 95/46/EC (hereinafter "RODO").
Users' data will be processed to the extent necessary to:
I. to grant access to Dature Services pursuant to Art. 6 paragraph. 1(b) of the RODO towards the contract for the use of the Dature Services for a period not exceeding the duration of the provision of services or the validity of the User's access rights;
II. processing of complaints or the establishment, investigation or defense of claims - on the basis of Art. 6 paragraph. 1(f) RODO, for the period of the statute of limitations for relevant claims;
III. Implementation of obligations under the law - on the basis of art. 6 paragraph. 1(c) of the RODO, for the period specified by law;
IV. compiling statistics or improving the quality of services provided in accordance with Art. 6 paragraph. 1(f) of the RODO for no longer than the period of service provision.
C. Access to data
In addition to Smartstock, third-party providers of software, networks, hosting and any service necessary to provide the Dature Services may also access the data, to send information through the server for statistical purposes in order to offer the Customer or User better and more personalized features and navigation. Data may also be made available to other entities than those indicated above, which have the right of access under applicable laws, e.g. public authorities.
D. Data security
All data stored by Smartstock is protected and secured from outside interference and from unauthorized internal access (i.e., from access by unauthorized Smartstock employees).
The data will be stored by Smartstock on servers equipped with professional voltage backup systems, and additional data backups will be made.
E. Rights of the End User against the processing of its data
The End User, in relation to the processing of data concerning them, and which may constitute the subject of personal data protection, has the right to access the content of their data and the right to rectify, delete, limit processing, the right to data portability, the right to object, the right to withdraw consent at any time without affecting the legality of processing carried out on the basis of consent before its withdrawal, as well as the right to lodge a complaint to the supervisory authority (in Poland to the President of the Office for Personal Data Protection).
Any complaints regarding the provided Dature Services, may be submitted on the terms of support services or at:
I. e-mail address: firstname.lastname@example.org
II. or in writing to the address of Smartstock (Królowej Jadwigi Street 43 61-871 Poznań).
The complaint notification should contain the data of the complainant to make it possible to contact him back, as well as an accurate description and indication of the reasons for the complaint.
In situations where the application is not covered by technical support will be processed by Smartstock within 14 days of receipt of the application.
12. Final stipulations.
A. Notifications to Parties.
Notifications must be in writing, unless the terms of the Order or the Regulations permit another form. The date of delivery of the notice will be considered the date of receipt of correspondence at the address given, the date of postal receipt, the date of e-mail or the date of receipt of courier mail or fax. Written notifications addressed to Smartstock should be sent to the address:
Smartstock Sp. z o.o.
ul. Królowej Jadwigi 43
Notifications to the Customer will be sent to the address specified by the Customer in the Customer Order as the contact address for sending notifications. Smartstock may send notifications and other information to the Customer by e-mail or other electronic form.
B. Transfers of rights and obligations.
The Customer may not assign its rights or obligations under this Agreement in whole or in part or transfer a license without Smartstock's consent.
The parties agree that Smartstock shall be entitled to transfer all or part, to the extent and at the time of its choice, of its rights and obligations to any third party, without the obligation to obtain any consent from the Customer. Smartstock is required to inform the Client in writing of the transfer of all or part of the rights and obligations under this Agreement.
C. Disjunctive provisions.
If any part of the Agreement is declared unenforceable, the remaining provisions shall remain in force.
D. Waiver of provisions.
Inability to enforce any provision of these terms of service of Dature does not constitute a waiver of the exercise of rights.
E. Lack of representation relationship.
These Regulations do not lead to the establishment of a representative office, company or joint venture.
F. Third party rights.
G. Governing Law and Place of Dispute Resolution.
H. Entire agreement.
These Terms and Conditions as well as the Order and the other combined terms and conditions for the use of the Dature Services constitute the entire agreement regarding the subject matter hereof and supersede any past or current arrangements made in this regard. In the event of a conflict between the provisions of the documents listed in the Terms and Conditions, with respect to which the other provisions contained in such documents do not expressly indicate how they are to be resolved, such documents shall prevail in the following order: (1) these Terms and Conditions together with the Customer Order, (2) the Terms and Conditions for Technical Support Services, (3) the relevant Offer Details, and (4) any other documents mentioned in the Terms and Conditions or the Order.
I. Retention of force.
The provisions of Sections 1, 4, 5.c, 5.e, 7, 8, 9, and 10 of these Terms and Conditions shall continue to apply even after termination or expiration of the Dature Services Agreement.
J. Higher power.
Neither party will be liable for any non-performance resulting from causes beyond the real control of that party (such as fire, explosion, electrical power failure, earthquake, flood, cloudburst, strike, embargo, negotiations between employer and employees, acts of governmental or military authorities, war, acts of terrorism, including cyber-terrorism, fortuitous events, acts or omissions of ICT network operators, acts or omissions of governmental bodies or administrative entities, including the enactment of a law or the establishment of regulations or other legislation affecting the provision of Dature Services). However, this section does not apply to the Client's payment obligations.