FRAMEWORK AGREEMENT ON THE PROVISION OF SERVICES BY ELECTRONIC MEANS
This Framework Agreement on the Provision of Services by Electronic Means („Agreement”) is concluded between Vercom S.A. with its registered office in Poznań, at Franklina Roosevelta 22, a company entered into the Register of Entrepreneurs of the National Court Register (KRS) kept by the District Court of Poznań – Nowe Miasto and Wilda in Poznań, 8th Commercial Division of the National Court Register under KRS number: 0000535618, NIP (PL Tax ID): 7811765125, REGON: 300061423 („Vercom”) and the Client, i.e., an entity who enters into this Agreement to use the services rendered by Vercom hereunder („Client”).
Vercom creates and develops global cloud communication platforms (CPaaS) that empower entrepreneurs to build and grow lasting relationships with their audiences accross multiple communication channels. Both big and small enterprises can rely on Vercom’s solutions when it comes to overcome the complexity of communication by automating and scaling the process, while maintaining high deliverability and efficiency – all in a fast, secure and reliable manner.
The purpose of this Agreement is to set out general terms and conditions, based on which Vercom shall be rendering its services to the account of the Client.
§1. GENERAL PROVISIONS
1.1. Upon the Agreement and terms set forth hereby, Vercom provides the Client with dispatch and automation services of: (i) SMS, (ii) MMS, (iii) SystemEmail, (iv) Push mobile, (v) Email API and/or (vi) RTM (dynamic segmentator) communication (hereinafter jointly referred to in as the „Services” or each one separately as the „Service”).
1.2. The Client is an entrepreneur within the meaning of Article 4 of the Act of 6 March 2018 of Entrepreneurs’ Act.
1.3. Subject to the provisions of the section 1.6. below, the Services are rendered by Vercom for a fee, i.e., upon the remuneration due to Vercom on a monthly basis. The amount of a monthly remuneration due to Vercom for the provision of the Services selected by the Client, shall be calculated based on the pricing.
1.4. Subject to the services of SMS/MMS dispatch, the rule is that the Services are rendered in packages indicated in the Price List („Packages”). The functionality of a Service depends on the Package selected by the Client. Vercom reserves the right to modify the functionality of the Packages, expand Vercom’s offer with new Packages, as well as resign from rendering of the Services based on a particular Package. Any changes made within the scope mentioned in the preceding sentence, shall not affect the Services rendered to the Client prior to the change. The current offer of available Services always derives from the Price List. The Client selects a desired Package via the Purchase Order, which – compared to the provisions of this Agreement, is a document containing special terms of rendering the Service selected by the Client („Purchase Order”).
1.5. In order to use the Services rendered by Vercom, it is essential to register at: register page(„Website”). During registration, the Client is obliged to provide its identification data in order to create an account („Account”). The Client gets access to the ordered Services via the Account, as well as uses the Services after logging into the Account, via the Website. Unless the Purchase Order states otherwise, the Client is allowed to own one Account only.
1.6. In a limited scope, the Client shall be able to use the Services free of chargé, based on the Free Package. The functionalities of the Free Package derive from the Price List. The purpose of the Free Package is to enable the Client to familiarize with Vercom’s Services. Any time, Vercom shall have the right to offer the Client, who uses Vercom’s Services based on the Free Package, a transition to any payable Package.
1.7. Unless the Client selects an Additional Function which gives such a guarantee, Vercom does not guarantee an immediate dispatch of a communication, as speed of a dispatch depends on the amount of messages, equipment, services or software the Client uses, as well as network’s and SMPT server’s load.
1.8. Vercom does not guarantee the Client a delivery of a communication ordered by the Client for a dispatch to the addressees, however Vercom undertakes due care so that all communication ordered for a dispatch is duly delivered.
1.9. Vercom may conclude, with selected service providers rendering services of providing email accounts (servers of incoming mail), who offer such possibility, agreements aiming at empowering the effectiveness of email delivery – also on settings of such mail accounts made by their users or their service providers depends the possibility of using Additional Functions, in a whole or in a part, in relation to email communication being sent out at those accounts, therefore Vercom cannot guarantee, in this scope, a possibility of using all functionalities in relation to all email communication being sent out. In case of sending SMS/ MMS/ Push Mobile communication, using their functions may be subject to limitations deriving from settings of mobile devices used by end-users, and their operation systems. Vercom keeps monitoring, and when necessary, modifies functionalities of rendered Services, so that they are in line with current requirements of telecommunications operators (GSM) – Vercom is, however, not able to guarantee the Client effective dispatch of communication with the use of all functions of the rendered SMS/MMS/Push Mobile services, as such effectiveness depends also on factors on which Vercom has no impact (settings of mobile devices, settings of applications used by Client’s end-users, settings of operation systems of mobile devices.
1.10. Vercom enriches all email communication being sent out, with heading data (SPF, DKIM) which role is to make impersonation of the Client by a third party more complicated, as well as which enable enlarging the effectiveness of email delivery.
1.11. Vercom does not provide the Client with incoming mail server, nor grants the Client incoming email account address, therefore the Client who wishes to receive responses coming from its end-users must, on its own, obtain rendering of such services and provide its email address within the sent communication – such email address dedicated to receive responses may differ from the one provided by the Client during registration process.
1.12. Vercom shall not be liable for communications (and their contents) sent out as the performance of the Services ordered by the Client. In addition to this, Vercom shall not be liable for: (i) communication sent out late, (ii) communication which could not be sent out due to technical reasons, independent of Vercom, (iii) communication that could not be sent out as a result of exceeding binding limits of a selected Package, as well as (iv) in case of a remote dispatch, communication which has not been correctly queued.
1.13. Vercom shall provide the Client with useful information on using the Services – in a way of welcome email messages, being sent out periodically, in the amount of maximum 10 messages per each of the selected Service. The purpose of the aforementioned email messages, is to enable the Client use the Services rendered on basis of this Agreement, as well as familiarize with their functionalities efficiently. Vercom shall send the aforementioned communication as a part of the Service rendered on basis of this Agreement.
1.14. Vercom reserves the right to a maintenance break in the operation of the Website and its functionalities (including Services provided) lasting up to 24 hours, of which the Clients shall be notified in advance through an appropriate announcement. The maintenance breaks shall be made no more than once per a quarter in a calendar year, unless the break is forced by a sudden event, unforeseen by Vercom, that requires immediate reaction resulting in a break of functioning of the Website and/or rendered Services.
1.15.
THE SERVICES MAY BE SUBJECT TO LIMITS OR OTHER LIMITATIONS DERIVING FROM THE PRICE LIST (FOR EXAMPLE, LIMITS RELATING TO THE NUMBER OF SMS/EMAIL MESSAGES BEING POSSIBLE FOR A DISPATCH IN A CALENDAR MONTH). IN CASE WHEN IN A GIVEN MONTH, THE CLIENT REACHES THE LIMIT OF A POSSIBLE NUMBER OF MESSAGES INCLUDED IN THE SELECTED PACKAGE, RENDERING OF THE SERVICE SHALL BE SUSPENDED AND THE DISPATCH OF THE COMMUNICATION SHALL BE CONTINUED IN THE NEXT MONTH. VERCOM SHALL NOTIFY THE CLIENT ON APPROACHING THE LIMITS IN ADVANCE.
The notification as mentioned in the preceding sentence, shall be delivered to Client’s email address indicated during the Registration, unless in the Purchase Order the Client provides another email dedicated to communication with Vercom.
1.16. Due to a serious reason, Vercom shall be entitled to temporarily cease or limit to a significant extent rendering of the Services, or amend terms of their provision, if meeting the requirements related to a continuity of rendering of the Services, independent of Vercom, such as, in particular, malfunction of the telecommunications network, natural disasters, situations of a special danger and necessity to maintain the protection of network’s integrity, is not possible.
1.17. The Client is obliged to comply with recommendations, guidelines and instructions of Vercom in respect of the Services rendered and the manner of using the Services. All useful information on the configuration of the Services, as well as the manner of using the Services, shall be made available to the Client via the FAQ and the API Documentation. Both, the FAQ and API Documentation may be subject to periodic updates, which shall not constitute amendment hereof, as well as shall not be subject to the requirement of making notifications to the Client as specified in the provisions of the Clause 8 section 8.5. – 8.7. of this Agreement; both documents are available to the Client upon logging into the Account, always in a current version, and are of an auxiliary character only. If the aforementioned documentation does not provide for information currently desired by the Client, further support may be offered by the Customer Care Department („CCD”) whom the Client may reach by contacting electronically at email address: [email protected] Information on CCD’s working hours is available on the Website.
§2. TECHNICAL REQUIREMENTS NECESSARY TO USE THE SERVICES AND PROHIBITED ACTIVITIES
2.1. Using the Services provided by Vercom within the provisions of this Agreement requires the Client to meet, at least, the following technical requirements: (i) use a PC, Mac, or a similar computer device with an operating system (e.g. Linux, Mac OS, Windows or a similar one) or another device allowing for the access and browsing the Internet (e.g., a mobile phone, palmtop, smartphone, tablet etc.), (ii) access to the Internet, (iii) have an active e-mail account, (iv) use Internet Explorer 10 or a newer browser, Mozilla Firefox 14.01 or a newer one, Google Chrome 10 or a newer one or another publicly available browser – in its current version, and their proper configuration – Note: it is crucial that the browser is configured to support HTML documents and „Cookie” files are accepted, as well as JavaScript is enabled on the web browser. It is recommended to have an updated antivirus software while using Services. In case of API-based Services (Application Program Interface), it is essential to do integration with the use of API, including proper configuration of the equipment, services or software used by the Client. Provided that such support does not create any costs for Vercom, Vercom declares its support by the configuration. Vercom stipulates hereby that some equipment, services or softwares might not fulfill all requirements for the integration to be possible, therefore Vercom does not guarantee that every Client will be able to use the Services excluding Vercom’s infrastructure. Using the Services based on API may cause access to limited number of functionalities of the Services.
2.2. Vercom makes its best efforts to make using the Services possible from all popular tools (computers and other devices), operation systems and internet browsers, however is not able to guarantee the effectiveness, in a whole or in a part, and possibility of using the Services with the use of each and every available device.
2.3. Vercom shall bear no liability for any irregularities in the functioning of the Website and rendered Services, resulting from the Client’s failure to comply with technical requirements specified in the section 2.1. above.
2.4. Any costs associated with the implementation of technical solutions necessary to use the Services provided by Vercom, defined in the section 2.1. above, shall be incurred solely by the Client.
2.5. For the entire term of the Agreement, it is prohibited to use the Website and Services provided by Vercom in such a way as to allow or permit unauthorised access to Vercom’s IT system, infect the system with malware, post unlawful content or hinder proper functioning of the website and rendered Services.
2.6. For the entire term of the Agreement, the Client shall be obliged to: (i) refrain from supplying illegal or indecent content, including one violating the principles of social conduct, infringing or threatening the rights, including personal rights, of people and third parties, infringing any intellectual property rights, inciting racial, ethnic, religious and cultural hatred, as well as hatred concerning sexual orientation, promoting violence and pornography – in any form, and (ii) refrain from submitting unsolicited commercial communication within the meaning of the provisions of the law of 18 July, 2002 on Providing Services by Electronic Means.
2.7. It is prohibited to use the Services for sending communication consisting of illegal content, as well as to use telecommunications end-devices and/or automated calling systems for direct marketing purposes with no prior consent of the end-user. Collection of all consents required by Law based on which sending communication to end-users is admissible, shall be the sole obligation of the Client.
2.8. Prior to the commencement of using the Services, the Client is obliged to read Vercom’s Anti-Spam Policy („Anti-Spam Policy”). For the entire term of the Agreement, the Client is obliged to comply with the provisions of the Anti-Spam Policy, and all actions being in contrary to the Anti-Spam Policy shall be considered as a serious breach of this Agreement and may result in termination of the Agreement with immediate effect or – depending on Vercom’s choice, suspension of rendering of the Services until the matter is clarified by the Parties (with the stipulation that for the period when rendering of the Services is suspended, Vercom shall still be entitled to the remuneration). The Anti-Spam Policy constitutes an integral part hereof.
2.9. Any breach by the Client of any provisions in sections 2.5. – 2.8. aforementioned shall be deemed a flagrant breach of the Agreement and shall result in the termination of the Agreement with immediate effect. The provisions of the Clause 7 section 7.2. of this Agreement shall be applied accordingly.
§3. REMUNERATION
3.1. The Client is obliged to pay Vercom the remuneration due to Vercom for rendering of the Services based on this Agreement.
3.2. The remuneration due to Vercom as mentioned in the section 3.1. above, shall be calculated based on the Price List. If the Client – apart from the functions of the Service covered by the selected Package, uses also additional functions of the Service, i.e., functions not included in the selected Package („Additional Function”), the remuneration due to Vercom for rendering of the Services including Additional Function(s) shall be increased by the cost of Additional Function(s) deriving from the Price List.
3.3. Subject to other provisions of the Purchase Order, remuneration due to Vercom is payable on a monthly basis, in advance, on basis of an invoice issued by Vercom. If in a given calendar month the Client exceeds an already paid limit relating to a number of messages possible for a dispatch in a given month and / or exceeds the limit relating to the volume of contacts in its database, at the beginning of the next calendar month Vercom shall issue the Client another invoice, covering the remuneration due to Vercom for limits exceeded by the Client. The Client accepts hereby that all invoices are issued electronically only, without signature. All invoices shall be delivered to the Client in electronic way, at Client’s email address provided during the Registration, unless the Client provides another email address for this purpose in the Purchase Order.
3.4. The Client is obliged to timely pay the remuneration to Vercom. Vercom shall be informing the Client on approaching payment date in advance. If the Client is late with payment due to Vercom, Vercom reserves the right to provide the Client with monits informing on the passed deadline for payment of the invoice, as well as reserves the right to charge the Client with statutory interests for late payment. All monits mentioned in this section 3.4. are of an automatic character, have nothing to do with marketing and cannot be turned off.
3.5. If the Client is late with payment of the remuneration due to Vercom as set out in this Clause 3 for more than 21 calendar days, Vercom shall have the right to suspend the Service untill the remuneration, increased by the statutory interests for late payment as mentioned in the section 3.4. above, is fully settled by the Client. In the event mentioned in the preceding sentence, Vercom shall be entitled for the remuneration for the whole period of the suspension of the Service.
3.6. If the Client is late with payment of the remuneration due to Vercom for more than 28 calendar days, Vercom reserves the right to terminate the Agreement with immediate effect. In such case the provisions of the Clause 7 section 7.2. of the Agreement shall apply accordingly.
§4. CONFIDENTIALITY
4.1. All information pertaining to the other Party, obtained during the cooperation and in connection with the performance of this Agreement, as well as all individual terms of cooperation, including but not limited to remuneration due to Vercom, shall be considered confidential and are not allowed to be disclosed to any third party during the cooperation, as well as for the period of 10 (in words: ten) years after the termination of this Agreement. The provisions of the preceding sentence do not apply to situations, where disclosing the confidential information is required by binding provisions of Law (in such case, the obliged Party is obliged to immediately inform the other Party on the intended disclosure of confidential information, as well as provide the other Party with information on the authorized entity to whom the confidential information shall be disclosed). The Parties may, additionally, conclude a proper non-disclosure agreement.
4.2. Confidential information, which by their nature constitute legally protected information, such as, for instance, information covered by the banking secrecy, insurance secrecy or telecommunications secrecy, can be disclosed by Vercom solely based on a valid legal ground and solely to the authorised public authorities, statutory legitimate to obtain such information for a specific purpose. In the event stipulated in the preceding sentence, Vercom shall immediately inform the Client on the receipt of the summon coming from the authorised public authority, requesting Vercom to disclose legally protected confidential information – unless the Law explicitly prohibits sharing such information to the other Party, especially due to important public interest, as well as Vercom shall register the request and all actions undertaken in response to the request in a proper register kept by Vercom. The aforementioned register shall contain, in particular, the following information: (i) date of receiving of the summon, (ii) information on whom the summon comes from, (iii) scope of requested information, (iv) the Client whom legally protected confidential information relate to, (v) purpose and legal ground for disclosure of the information, (vi) date of disclosure of the information and the scope of information subject to disclosure.
§5. PERSONAL DATA
5.1. The conclusion and further performance of this Agreement shall require personal data processing. Whenever Vercom decides on purposes and means of data processing, it shall be considered as a data controller. Detailed information on the processing of personal data carried out by Vercom is available in the Vercom’s Privacy Policy.
5.2. In all cases other than set out in section 5.1. above and subject to the provisions of the next sentence, the provision of services is available upon concluding with Vercom a data processing agreement („Data Processing Agreement”). Whenever the nature of information processed by the provision of the Services does not include personal data in the meaning of the Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (”GDPR”), or when the GDPR does not apply to the processing of data in relation to rendering of the Services, conclusion of the Data Processing Agreement is not required.
5.3. In case of the Services mentioned in section 1.6. of the Agreement (i.e. services rendered free of chargé), until being fully verified by Vercom, the Client is allowed to test functions of the Services with the use of Client’s own personal data only. Using the Services for purposes of sending any communication to natural persons, whose personal data the Client processes as a data controller, or whose data the Client processes as a processing entity, requires prior conclusion of the Data Processing Agreement with Vercom.
§6. PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
6.1. The Website – its graphic design and content is the property of Vercom.
6.2. Copyright on any content made available by Vercom within the Website, as well as rights to all graphic elements of the Website, belong solely to Vercom. Using the Services rendered via Website does not entail the acquisition of any rights or licenses to the content or elements by the Client. The Client may use the aforementioned content or elements only to the extent permitted by mandatory provisions of law.
6.3. Any reproduction of the Website’s elements, information, texts, pictures, trademarks, logo or any other graphic elements posted on the Website to be used in full or in part, including linking, in a modified form on other websites, electronic publications or in printed form without prior written consent of Vercom is forbidden. Using the content of the Website which was clearly made available to the Client for purposes related to using the Services shall not be prohibited.
6.4. The use of the Website and its content, tools or Services is permitted solely under subject of Agreement hereby, solely in connection with the use of Vercom’s Services provided via them and solely for the purposes for which they are intended and in accordance with applicable provisions of law.
§7. TERMS OF THE AGREEMENT AND TERMINATION OF THE AGREEMENT
7.1. Notwithstanding anything to contrary in the Purchase Order, the Agreement is concluded for an indefinite period and can be terminated by each Party with the 30-day notice period, effective at the end of a calendar month, following the month in which the Agreement has been terminated. In the case of Clients with a dedicated Account Manager, the Client shall provide the notice of termination in writing (email, scan of the notice) to the email address of the CCD.
7.2. Vercom is entitled to terminate this Agreement with immediate effect, i.e., without the notice period, in any case of the breach of the provisions of this Agreement by the Client flagrantly, in particular in the event of breaching provisions of the Clause 2 sections 2.5. – 2.8. of the Agreement, or provisions of the Clause 6 hereof. In the event aforementioned in the previous sentence, access to the Client’s account and its entire content shall be blocked, whereas the Client is obliged to download all personal data processed within the Service on its own or instruct Vercom regarding their deletion. In the event when the Client does not download the data, nor issues instructions to Vercom in the scope discussed in the previous sentence for period longer than 3 business days since the termination of the Agreement, all data collected within the frame of the Service shall be subject to automatic deletion by Vercom, made without resummoning the Client to issue instructions in this regard. The provisions of the preceding sentence apply accordingly in the event when the Agreement is terminated according to the provisions of the section 7.1. above. In the event when the Client’s account has been blocked, the Client is obliged to immediately reach out to the CCD in order to get assistance by self downloading of the data, as set out in this section 7.2. Vercom shall inform the Client that the account has been blocked in electronic way, by sending the information to the email address provided by the Client during the Registration, unless the Purchase Order specifies another email address of the Client, dedicated for such notifications.
§8. FINAL PROVISIONS
This Agreement and any other documents applicable to the Services provided hereunder shall be governed by and construed in accordance with the Polish Law.
8.2. Any disputes arising out of or in connection to the implementation of the Agreement, as long as they cannot be resolved amicably, shall be settled by the public court having jurisdiction over Vercom’s headquarters.
8.3. The Client is entitled to lodge a complaint in all matters related to the Service provided. The complaint shall be lodged via email to the address: [email protected] Claims can be lodged no later than within 30 days since the cause of lodging the complaint appeared. For the avoidance of doubts, each complaint must be marked as a „Complaint” in its title. In case of complaints relating to email dispatch services, the complaint may be lodged no later than 3 days prior to the lapse of the retention period for logs of email communication; the retention period for logs of email communication has been determined in the specification of the email dispatch Service.
8.4. Claims shall be processed immediately, and the information regarding the manner of processing shall be sent via email address provided by the Client during registration (subject to the possibility of future updates) within 14 days from considering a complaint.
8.5. Vercom reserves the right to modify the provisions of this Agreement, as well as any other documents applicable to the Services provided hereunder, in particular in the case of:
- Extending the scope of Services provided, introducing new functionalities or options, improving the performance of Services, upgrading technology or improving the organization of the provision of Services on its basis, making services available to other categories of clients (e.g., consumers),
- Amendments to the laws requiring changes to this Agreement and to other documents applicable to Services rendered hereunder,
- The issuing of court rulings or other binding decisions of public authorities having an impact on activities of Vercom or the provision of Services referred to in this Agreement, in particular with regard to specifying or imposing new Service obligations on Vercom,
- Withdrawal of Services, elements, functionality,
- Unintended at the time of conclusion of this Agreement expiration or termination of agreements with third parties, which remain necessary for the provision of the Services referred to in this Agreement,
- Increase in the costs of running business by Vercom due to the increase in labor costs (minimum wage, average monthly salary in the commercial sector), price increase (including the increase in the level of inflation index on an annual basis, published by GUS or prices of goods or services of Vercom’s contractors, increase in acquisition, operation, upgrade, or maintenance costs,
- The occurance of force majeure within the meaning of applicable law, as a result of which it is not possible to provide services by Vercom to the current extent or under the existing conditions,
- The need to modify the Agreement on the part of Vercom through stylistic or editorial amendments, as well as to clarify its individual provisions, in a way that does no interfere with the rights and obligations of the Parties, but which is intended to improve the transparency of the document,
- The need to adapt the provisions of this Agreement to applicable legal requirements.
8.6. Subject to the provisions of section 8.7. below, Vercom shall inform the Client of planned changes in advance, in each case not later than 30 days prior to planned changes coming into force. Should the Client not agree to the change, the Agreement shall be terminated upon the lapse of the termination notice period. Vercom shall provide the Client with information on planned changes of this Agreement, or any other documents related to the Service, in electronic way, by sending an email to Client’s email address provided during the registration process, unless the Parties agree another contact address for such notifications in the Purchase Order.
8.7. In particularly justified cases, the term stipulated for notification of a planned change, set forth in the preceding section above, may be shortened – this may happen in the event, when Vercom is not able to keep the deadline due to reasons beyond Vercom’s control (e.g., in particular in case of unforseen change of inter-transmission system operator rates, due for SMS communication dispatch) . In the case as mentioned in the previous sentence, the Client shall be entitled to terminate the Agreement with immediate effect, untill the day the change comes into force the latest. No termination made by the Client till the day when a change comes into force, shall mean that the Client accepts the change.
8.8. In case of discrepancies between the provisions of this Agreement and the provisions of the Purchase Order, the provisions of the Purchase Order shall prevail. In all matters not regulated herein, the provisions of the Purchase Order shall aplly.
8.9. The Price List constitutes an integral part of this Agreement.
8.10. This Agreement shall be concluded on the date when the Client accepts its provisions by choosing a relevant check-box during the registration process. Rendering of the Services shall commence on the day agreed by the Parties in the Purchase Order.
The regulations are effective from 22.03.2023 from 16:00.
Regulations effective until 22.03.2023 is available HERE.
Regulations effective until 31.03.2022 is available HERE.
Regulations are in effect until 30.06.2021 available HERE.