GENERAL TERMS AND CONDITIONS OF SERVICES

(hereinafter “GTC”)

These General Terms and Conditions of TH-EY S&D LTD (a company registered in England and Wales, with registered number 11033177 having its registered office at 3 Wingfield Road, London, England, E151LP) shall apply to Orders placed by the Ordering Party and executed by the Service Provider.

General provisions
1. Unless otherwise agreed in the Order, the GTC shall apply to all Services provided by TH-EY as Service Provider to the Ordering Party on the basis of a concluded written Order for IT services (hereinafter: “Services“).
2. The Ordering Party shall familiarise with the GTC before placing the Order. By entering into an Order, the Parties incorporate the GTCs into the legal relationship thus established. The GTC shall apply to all Services that are the subject of Orders placed by the Ordering Party and performed by the Service Provider unless the Parties expressly agree otherwise in a given Order.
3. Any contrary, conflicting or additional terms and conditions of the Ordering Party relating to the rights or obligations under the Order or the GTCs shall apply only if accepted in writing by the Service Provider.
4. An Order shall be valid and binding when it is in writing, electronic or documentary form and signed by an authorised representative of each Party indicated in the respective Order.

Terms of cooperation
1. The Services may relate, in particular, to:
  1. analytical services, design services, programming services, implementation services,
  2. software testing,
  3. drafting documentation,
  4. substantive supervision over the services referred to above,
  5. support and maintenance,
  6. in relation to software, digital services or IT systems – depending on the subject of the Services order (hereinafter referred to as the “Order”).

The Services commissioned by the Service Provider consist of the performance by members of the staff (hereinafter: “Staff“) – selected for this purpose by the Service Provider – eg. any persons engaged in work or cooperation with the Service Provider or its related entity (TH-EY POLAND spółka z ograniczoną odpowiedzialnością, with its registered office in Kraków, ul. Rynek Główny 28, 31-010 Kraków, entered into the Register of Entrepreneurs of the National Court Register under KRS number 0000938268, NIP (Taxpayer Identification Number): 6762607703, REGON (National Statistical Number): 520669255) or presented to the Ordering Party as a candidate to the group of persons providing the Services, regardless of whether they perform their tasks on the basis of an employment contract, a civil law contract, appointment to the body of an organisational unit or legal person, obtained proxy or power of attorney, as sole proprietors cooperating with the Service Provider or its related entity, or as a result of involvement in another way.
Services shall be provided by members of the Service Provider’s Staff on business days during business hours (time between 9:00 and 17:00 according to the applicable zonal time – GMT), within a billing period, established in a given Order.
In the event that a member of the Staff cannot perform the Services due to waiting for the delivery of information or Material by the Ordering Party, then – unless otherwise agreed by the Representatives of the Parties – the Ordering Party shall be obliged to pay the Remuneration for the waiting time of the member of the Staff as for each hour of providing the Services, as established in a given Order.
The Service Provider declares that the subject of given Orders will be performed in accordance with the current state of IT knowledge, and the Services will be provided with due diligence and at the highest level resulting from the professional nature of the activities carried out by the Service Provider.

Acceptance of the Services

Unless otherwise specified in the Order:

in the case of provision of the Services under the TM model, members of the Service Provider’s Personnel shall be required to report, in a manner selected by the Service Provider, the number of hours spent on the performance of Services for the Ordering Party. The Service Provider shall submit to the Ordering Party, on the last day of the billing period (established in a given Order) , a summary covering the number of hours of Services provided during the billing period (hereinafter the “Report”). If the Ordering Party does not make substantive comments on the Report within 3 business days since its receipt from the Service Provider, it shall be deemed that:
1. the Report has been approved by the Ordering Party in its entirety and without objections,
2. all Services covered by the report have been received without defects and unconditionally,
3. the Ordering Party has received the works established under the Services covered by the respective Report.
in the case of the provision of the Services in the FP model, unless otherwise specified in the Order, the Service Provider shall submit the subject of a given Order to the Ordering Party for approval. If the Ordering Party does not make substantive comments on the subject of the Order within 3 business days from the date of its receipt from the Service Provider, it shall be deemed that:
1. the subject of the Order has been approved by the Ordering Party in its entirety and without objections,
2. all Services covered by the approval have been received without defects and unconditionally,
3. the Ordering Party has received the works established under the Services covered by the respective Order.

Obligations of the Ordering Party
1. In order to enable the Service Provider to perform the subject of the Orders correctly and on time, the Ordering Party undertakes to:
  1. provide the Service Provider with all data, information and materials necessary for the performance of the Services (hereinafter collectively referred to as the “Materials”), within the time limit agreed by the Parties, and if the deadline has not been agreed – within 2 business days of the Ordering Party’s request,
  2. provide all relevant licenses, approvals, authorisations and/or permits for third-party software necessary for the proper performance of the Services covered by the respective Order, in particular the Services involving the integration of the result of the Services provided by the Service Provider under the Order with third-party software,
  3. ongoing cooperation with the Service Provider and its Staff, including through:
    1. ensuring the availability of the Ordering Party’s Representative and
    2. providing answers to questions and substantive consultations during the provision of the Services,
  4. performance of all activities on the part of the Ordering Party agreed by the Parties, including – if necessary – to ensure proper cooperation by third parties with whom the Ordering Party cooperates, whose actions are necessary to perform the Order or for the proper provision of Services,
  5. timely payment of the remuneration, in accordance with a given Order.

The Ordering Party declares that:
1. it has exclusive and unlimited copyrights to the Materials or has appropriate permissions, licenses, consents or permits thereto,
2. may use or dispose of the Materials to the extent necessary to perform the Order and Orders, including the Service Provider may use them when providing the Services,
3. has entered into all required agreements with third-party software providers (third parties) and has acquired all rights under the licensing terms of third-party software to ensure the conditions necessary for the proper execution of the subject of the Order.
If the Parties have agreed that in connection with the provision of the Services the Service Provider will incur certain expenses (e.g., purchase of a domain, external services), the Ordering Party agrees to reimburse the Service Provider for such documented, reasonable and approved by the Ordering Party expenses. Unless otherwise agreed by the Parties:
1. the Service Provider undertakes to provide documents confirming the costs incurred;
2. the Service Provider shall re-invoice the costs incurred, attaching copies of approved documents confirming the costs incurred, no less frequently than once a month – together with an invoice for the Services performed.
The Parties agree to engage all necessary resources for the efficient and timely performance of the Order. However, if the Ordering Party requires additional Services that have not been previously agreed upon by the Parties, the Service Provider may commence provision of such Services on the Ordering Party’s express acceptance of the necessary additional costs of the Service Provider – such as the cost of assigning an additional member of the Service Provider’s Staff. Unless otherwise agreed by the Parties, discussion of such additional Services shall not affect other Services.

Service Provider’s Remuneration

The Service Provider shall be entitled to remuneration for the provision of the Services as set forth in the Order.
Remuneration for the performance of the subject matter of a given Order may be settled in two models:
1. according to a pre-agreed lump sum (Fixed Price, FP) or
2. according to the Service Provider’s actual expenditures and costs, including the real-time of providing the Services (Time&Materials, TM).

For the FP model, in which the total amount of the Service Provider’s remuneration is predetermined in the Order, the Parties shall agree in detail on the scope, schedule and all necessary requirements for a given Order, including the specification of the Services or software to be provided, transformed or maintained as a result.
In the case of the TM model, the Parties agree in advance on the unit remuneration – charged per hour for the provision of Services. The Service Provider’s total remuneration shall depend on the number of hours spent by the Service Provider’s members of Staff to perform the subject of the Order. The Parties shall establish in the Order the unit rates for each member of the Staff providing the Services.
Unless otherwise specified in a given Order, the following rules shall apply:
1. remuneration for Services provided during business hours on a business day – in accordance with the hourly rates specified in the Order,
2. additional remuneration for each hour of Services provided outside business hours on a given business day (excluding night hours) – in accordance with the overtime rates for business days indicated in the Order,
3. additional remuneration for each hour of provision of the Services at times other than those indicated in 1) and 2) (outside business days or each day during night hours – the time between 21:00 and 07:00 according to the applicable English zonal time: GMT) – in accordance with the overtime rates for night hours and days off indicated in the Order.

If the provisions of the applicable law establish such an obligation, the remuneration will be increased by the amount of tax on goods and services (VAT) calculated according to the rates applicable on the date of issuing the VAT invoice by the Service Provider.
The remuneration will be paid in arrears on the basis of a VAT invoice – issued up to 14 days from:
1. in the case of the TM model – from the end of the billing period in which the Services covered by it were provided and sent to the Ordering Party along with the Report,
2. in the case of the FP model – from the acceptance of the subject of a given Order by the Ordering Party.

Unless otherwise stipulated in the Order, the remuneration will be paid to the Service Provider’s bank account indicated in the VAT invoice within 14 days from the date of issuing the VAT invoice to the Ordering Party. The date of payment is the date of crediting the funds to the Service Provider’s bank account.
In the event of a delay in payment of any of the invoices longer than 14 days, the Service Provider has the right to refrain from performing the Services and/or refrain from performing other services under a given Order – regardless of whether the obligation to perform them arose before the due date of the delayed invoice. For each day of delay in payment, the Service Provider will be entitled to statutory interest for delay in accordance with applicable law.
In the case referred to in sec. 9, the Service Provider is not liable for:
1. a delay or failure to meet any deadline, obligation or other arrangement of the Parties, expressed or measured by time, or for
2. the consequences of such a delay or failure to meet – for the Ordering Party and the activities carried out by it, including for any losses or profits lost by the Ordering Party as a result of such delay or failure to meet the deadline.

The Service Provider is entitled to periodically unilaterally adjust the rates of remuneration indicated in the Order, in an amount, however, limited to official data – inflation indicator, published by the Office for National Statistics. If a higher frequency of valorization is not specified in a given Order, it will take place in December of a given calendar year or in January of the following year. The Service Provider shall notify the Ordering Party of each valorisation in writing or electronically.
If in the notification referred to in sec. 11 it is not stated otherwise, the indexation applies to the Remuneration calculated starting from the first calendar month following the month in which the Ordering Party received the notification.

Copyright

All intellectual property rights which are created prior to or independently of Orders are owned by each Party; provided, however, that each Party shall have a royalty-free license to use the Materials to the extent necessary for the performance of the Orders.
If in a given Order it is not agreed otherwise, upon payment of the entire remuneration due to the Service Provider for the performance of the Services covered by a given Order, the Service Provider transfers to the Ordering Party – under the remuneration referred to in § 5 of the GTC and given Order – all copyrights to the Works created or co-created during the performance of this Order.
The Service Provider transfers to the Ordering Party the right to exercise derivative copyrights to the Works and to consent to the use and execution of derivative copyrights to the Works by third parties, in particular the right to create, use and dispose of any studies of the Works, make any modification, alteration, adaptation and translation.
When performing the subject of the Orders, the Service Provider and its staff may use:
1. such ready works (including software or parts thereof) distributed or made available by third parties, which are licensed to the extent that they can be used to perform the subject of the Order (including on the basis of licenses specified as open-source),
2. materials that are not works, that originate from third parties or that are created using tools that do not originate from the Service Provider or its staff (in particular, AI tools).
In the case, referred to in sec. 4 above, the Service Provider ensures that:
1. while providing the Services, it used such works – within the limits of the respective licenses, and materials that are not works – within the limits of the law,
2. such works and/or non-works materials used by the Service Provider in the performance of the subject of the Order will enable the Ordering Party to use the subject of the Order in accordance with the purpose known to the Service Provider.

Protection of information, Staff and customers
1. If the Parties have not entered into a separate non-disclosure agreement (NDA) or other agreement of similar nature or effect – or such agreement or agreement is not in effect (for any reason) or not applicable to the Order – the provisions of this paragraph shall apply.
2. To the extent required by applicable laws and regulations, each Party undertakes to maintain confidentiality with respect to activities undertaken in the performance of the Order and to protect personal data, personal property and other tangible and intangible assets of the other Party to which the Parties have access in the performance of the Order.
3. The obligations referred to in sec. 2 above shall bind the Parties for the period indicated in the relevant laws applicable to the Service Provider (including the RODO), and in case such period is agreed by the Parties – during the performance of the Services and for a period of 24 months after the Service Provider performs the last of the Services for the Ordering Party.
4. Neither Party shall, during the performance of the Order and for a period of 12 months after the Service Provider has performed the last of the Services for the Ordering Party, employ or induce a change of employment or use the services under any legal relationship, directly (through any person, especially a member of its Staff, or a related entity) or indirectly, any Staff or other person related or cooperating with the other Party who was directly involved in the cooperation between the Parties or whose data was provided by the Party to the other Party – in particular as candidates for the provision of Services or participation in the execution of the Order.

Liability
1. Each Party shall be liable for its own acts and omissions – as well as for the acts and omissions of members of its staff assigned by such Party to perform the Services or otherwise involved in the Parties’ cooperation with respect to the Order.
2. The Service Provider shall not be liable for non-performance or improper performance of the Order for reasons attributable to the Ordering Party or persons directed by the Ordering Party to cooperate with the Service Provider, subject to sec. 1 above.
3. The total Service Provider’s liability for non-performance or improper performance of the Order shall be limited:
  1. in the scope covered by the liability insurance held by the Service Provider – up to the amount of the liability insurance,
  2. in the scope not covered by the aforementioned insurance – up to the remuneration of the Service Provider for the provision of the Services or parts thereof covered by the given claim or circumstances, and if the Services under a given Order are performed for more than 3 months – to the remuneration for the Services performed during the last 3 months.
4. In the entire scope of the subject of the Orders, the Parties hereby exclude entirely:
  1. the application of the statutory provisions on warranty and guarantee, as well as
  2. the Service Provider’s liability on these grounds.
5. Neither of the Parties shall be liable for a failure to meet the deadlines or for other non-performance or improper performance of the Order, or failure to comply with any assurance or obligation, if it is due to circumstances or reasons beyond its control, including, inter alia, when it results from:
  1. acts or omissions, or due to lack of cooperation of the other Party (including, inter alia, the Representative of the other Party, entities and persons under its control or members of the Staff), or
  2. due to circumstances of force majeure, e.g.
    1. fire, breakdown or other random event, including those resulting in the unavailability or disruption of Internet connections or network services, or other interruptions, disruptions or difficulties in connections or communication;
    2. a natural disaster, epidemic or state of epidemic emergency, strike, labour dispute, riot, civil unrest, war, state of war or other international, national or local conflict;
    3. entry into force of new or amended legal provisions, or an administrative act, ruling, binding order or requirement of an authorised body or public institution that is binding for a given Party.
6. The Service Provider shall also not be liable for non-performance or improper performance of the Orders or for damages in the event:
  1. when the Ordering Party, by itself or with the help of a third party, made changes to the source code or changed the technical parameters or the IT system of the server or other IT infrastructure used by the Parties,
  2. the occurrence of accessibility, throughput or performance problems caused by:
    1. actions of third parties, including hacking activities,
    2. presence or operation of malicious software,
    3. improper data entry by the Ordering Party, its staff or a third party,
    4. conflicts with other software of the Ordering Party or a third party’s that has not been presented to the Software Provider as the software referred to in § 2 sec. 2 of the GTC,
    5. software updates that occurred after acceptance of the Services in accordance with § 3 of the GTC, as well as third-party software updates,
    6. modifications of the Ordering Party’s software in accordance with the Ordering Party’s recommendations, in particular involving integration of this software with third-party software.
  3. changes in the licensing rights, mode of operation or quality of the result of third-party’s software, in connection with the provision of Services involving the integration of the result of the Services provided by the Service Provider under the Order with third-party’s software.
7. In the event that a third party makes a claim directly against the Service Provider for damages suffered by the third party due to an illegal act or omission of the Ordering Party (including breaching a contract), the Ordering Party agrees to indemnify the Service Provider for such claims, and, in the event that the third party brings legal proceedings against the Service Provider, to join the legal proceedings on the side of the Service Provider and, if permitted by law, to support the Service Provider in the course of such proceedings and to reimburse the Service Provider for all reasonable costs incurred by the Service Provider in the course of such proceedings.

Personal data
1. If the performance of the Order is about to involve operations on personal data, the Parties undertake to act in this respect in accordance with the applicable provisions on the protection of personal data, i.e. in particular:
  1. the provisions of 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, and repealing Directive 95/46/EC (General Data Protection Regulation, the “GDPR”), in connection with the decision of the European Commission stating the adequacy of the level of personal data protection in the United Kingdom, allowing for the direct application of the principles resulting from the GDPR.
2. The Parties declare that they remain the data controller within the meaning of Art. 4 item 7 of the GDPR in the scope of personal data of persons representing the other Party and Representatives of the Parties, provided as part of the conclusion and implementation of the Order.
3. The Parties undertake to fulfil the privacy notice towards persons representing the other Party and contact persons or persons responsible for the implementation of the Order on behalf of the other Party. Content of the privacy notice regarding data administration by the Service Provider is available in Privacy Notice
4. Each Party undertakes to read the content of the relevant privacy notice, referred to in sec. 3, the persons mentioned in sec. 2, whose personal data will be made available to the other Party.
5. Mutual sharing by each of the Parties to the other Party of personal data referred to in sec. 2-4, occurs only to conclude, implement and monitor the performance of the Order and not to entrust them to the other Party for processing. Each Party acknowledges that if it processes personal data provided by the other Party for a different purpose, or collects other personal data from persons referred to in sec. 2 or processes them, will be the controller of such data in this respect and will be obliged to fulfil all obligations of the personal data controller resulting from the provisions on the protection of personal data. Neither of the Parties shall be liable for actions and omissions of the other Party inconsistent with the provisions of the aforesaid duties.
6. If, in connection with the performance of the Order, it is necessary to entrust the processing of personal data between the Parties, the Parties undertake to conclude an appropriate Data Processing Agreement in accordance with Art. 28 of the GDPR.

Final provisions
1. The Parties hereby submit this GTC, as well as any and all Orders to the laws of England and Wales.
2. Any disputes arising out of the Orders shall be settled amicably, and only if it is impossible to resolve it amicably, shall be settled by the court of general jurisdiction for the Service Provider’s registered office.
3. In case of any contradiction between the provisions of the GTC and the provisions of the Order, the Order shall prevail.
4. Any changes or additions to the Order or GTC require the annex concluded in the same form in which the Order was concluded, otherwise being null and void.
5. The invalidity, unlawfulness or unenforceability of any of the provisions of the Order or GTC in any respect in the light of the provisions of the law shall not affect the validity, compliance with the law and enforceability of the remaining provisions thereof.
6. Neither Party may transfer the rights or transfer obligations under the Order or GTC to a third party without the prior consent of the other Party, which should be expressed – under pain of nullity – in the same form in which the Order was concluded.