TERMS AND CONDITIONS FOR THE
PROVISION OF SERVICES
§ 1.
General Provisions. Legal Definitions.
1. This document (hereinafter: “Terms and Conditions”) sets out the basic terms and conditions for the provision of intermediation services for the registration of trademarks in the People’s Republic of China and other countries (hereinafter: “Contractual Activities”), which will consist of taking all factual and legal actions aimed at enabling the Principal to enter into cooperation with the Third Party and providing assistance in the course of such cooperation. The parties unanimously declare that ultimately the Contractor only assists in the conclusion of the target agreement with the Third Party and that the Third Party is solely responsible for the proper or improper performance of the service consisting in the correct registration of the trademark in the People’s Republic of China or another country, and that the Contractor is only an intermediary in this transaction.
2. Whenever the Contract is concluded, the Principal authorises the Contractor to conclude an agreement on its behalf with a Third Party for the registration of a trade mark(s) in the People’s Republic of China or in other countries included pursuant to the Contract. No separate power of attorney is required for the performance of the aforesaid act, and the authorization follows directly from the Agreement or from a separate power of attorney form signed by the Principal under the Agreement. In accordance with the interests of the Parties, it is not possible for the Principal to conclude the Agreement with the Third Party without the Contractor.
3. The entity providing the intermediation services described in these Terms and Conditions is Michał Bielewicz, conducting business activity under the name “ForCap Michał Bielewicz”, with registered office in Warsaw at Żelazna 51/53 (00-841 Warsaw), TAX ID: 9570080503, STATISTICAL NUMBER (REGON): 220006222 (hereinafter: “Service Provider”, “Contractor”) and is a party to the Agreements.
4. Entering the Service Provider’s website and performing any legal action with the Service Provider implies acceptance of the Terms and Conditions, including the use of the Service Provider’s website or the dedicated online application (if available). The Terms and Conditions together with the Price List form an integral part of the Contract.
5. The content of the Terms and Conditions is available on the website of the Service Provider and may also be accessible by profile on www.facebook.pl, possibly through a dedicated application.
6. Acceptance of the Terms and Conditions is tantamount to a declaration that the User is an entrepreneur within the meaning of Article 431 of the Act of 23 April 1964 Civil Code (Journal of Laws 1964 no. 16, item 93 as amended), or a person performing professional activities.
7. Acceptance of the Terms and Conditions and conclusion of the Agreement is tantamount to consent to the collection and processing of the User’s personal data for the purpose of performing the Agreement and/or the Terms and Conditions and for the Service Provider’s marketing purposes, in accordance with the provisions contained in the Terms and Conditions. The User acknowledges that for the purpose of performing the provisions of the Agreement and/or the Terms and Conditions and for marketing purposes it will be necessary to collect and process the Users’ personal data. In the case where the User is a commercial law company, this obligation applies to all members of the management board, proxies, members of the supervisory board and shareholders, as well as persons using the Services, including in particular employees and contractors and persons performing work.
8. The conclusion of the Agreement and the acceptance of the Terms and Conditions by the commercial company creates an obligation on the part of the person concluding the Agreement and accepting the Terms and Conditions on behalf of the company to submit the Terms and Conditions and the Agreement for acceptance to all members of the management board, proxies, members of the supervisory board and shareholders, as well as persons using the Services, including in particular employees and contractors and persons performing work.
9. Capitalised wording is a reference to the definitions below.
10. Definitions used in the Rules:
a. “Price List” – the list of fees for the provision of Services by the Service Provider, together with their scope, attached to and forming an integral part of the Terms and Conditions,
b. “Confidential Information” – means any information that is not in the public domain concerning the Parties and includes, in particular: management practices, company organisation, information concerning customers, employees, managers, agents, intermediaries, business partners, investors, and other persons working with the Parties, investments, strategies, plans, forecasts, budgets and other financial, technical and technological information concerning the Parties, documentation and any confidential material relating to the affairs of the Parties, whether or not produced by a Party.
c. “Third Party” – means a professional entity selected by the Contractor who is engaged in registering trademarks and is duly authorized to do so in the territories of protection of the trademarks offered at www.trademark.partners.
d. “Contract” – the target, concretised contract concluded by the User with the Service Provider, of which the Terms and Conditions form an integral part. It may be concluded in writing, or online via a dedicated application by accepting the Terms and Conditions.
e. “Services” – means the range of services provided by the Service Provider to the User as concretised in the Contract and the Price List,
f. “User”, “Principal” – means the person using any of the services provided by the Service Provider,
§ 2.
Implementation of services
1. The Contractor declares that it has the necessary professional experience and professional competence to perform the Contractual Activities for the Principal and, in performing the Contractual Activities, is willing to represent the Principal with dignity by appropriate attitude and behaviour.
2. The Contractor shall be entitled to use third parties to carry out all or part of the Contractual Activities.
3. The Principal undertakes to cooperate closely with the Contractor in the execution of the Contract.
4. The Contractor shall not be bound by the Principal’s directions as to the manner and content of the Contractual Activities and shall not be bound by the Principal’s directions in this respect. The Contractor shall act in the interest of the Principal using its knowledge and using its autonomous decisions.
5. The Contractor undertakes to perform the Contractual Activities delegated to it in such a way as to ensure their timely and correct execution, bearing in mind the best interests of the Principal.
6. The Contractor shall be liable for damages to the Principal in the event that its wrongful act causing the damage is caused by the Contractor’s wilful misconduct, and in addition, the Third Party shall be solely responsible for the proper execution of the order to register the trademark in the People’s Republic of China and other countries. The Contractor shall only be liable for the commissioning of such an activity to a professional entity, however, in the event of any damage due to the non-performance or improper performance of the trademark registration activity, all claims shall be addressed directly to the Third Party, provided that the Contractor has commissioned such an activity to an appropriate entity (fault in choice).
7. In the event that the Ordering Party suffers damage as a result of improper registration of the trade mark , the Contractor shall indicate to the Ordering Party the details of the Third Party who performed this act on behalf of the Ordering Party. In other cases, the details of the Third Party are a trade secret of the Contractor and the Contractor is not obliged to provide these details. The parties agree that the amount of damage shall be limited to the actual loss, excluding lost profit.
8. The Principal is solely responsible for the content and form of the trademark that it submits for registration to the Third Party through the Contractor.
9. The Contractor undertakes, to the best of its knowledge, to inform the Principal if a trademark indicated by the Principal for registration is not eligible for registration if the Principal separately orders a distinctiveness and registrability analysis prior to filing a trademark application for protection in the relevant territory. The Contractor declares that it is not possible to guarantee the registrability of a mark, as it is not always possible to determine at an early stage whether a given content has sufficient distinctiveness and registrability, even if the registrability examination carried out prior to filing for protection gave grounds to assume that the mark will be registered.
10. The Contractor undertakes that in cases where it becomes aware of information from the relevant trademark office about: issuance of a decision to refuse registration of a trademark, dismissal of an appeal, opposition to registration, reply to an opposition, application for cancellation or extinction of rights to a trademark and other events related to the Client’s marks, it shall, to the best of its knowledge, inform the Client of this fact without undue delay, indicating the arguments on which the decision or information is based, at the same time indicating recommendations for action and the deadline for the Client to take action.
11. The Contractor, when providing information to the Principal regarding any pending procedure relating to his trademark, shall indicate a cut-off date for the Principal to respond or for the Principal to provide the necessary documents. The Contractor shall not be obliged to urge or remind the Principal with regard to the response. The entire responsibility for failure to provide complete feedback rests with the Principal, as well as for the consequences for the protective rights of the mark resulting from the omission or delay.
12. Whenever a cut-off date is referred to, this shall be understood to mean the cut-off date applicable according to the time zone of the relevant trademark office. Due to time differences, working day calendars and the necessity to translate the transmitted documentation into the locally applicable languages, the Contractor shall be entitled to set deadlines for the delivery of answers and documentation earlier and to charge an additional fee for late delivery of answers and documents resulting in higher labour costs for its own or co-working persons handling the Principal’s mark outside typical working hours or days.
13. In connection with the performance of the activities described in the Contract, the Contractor shall be entitled to remuneration in the amount described in the price list on the Contractor’s website or as otherwise agreed between the parties by way of a special offer, the above amount also including the remuneration of the Third Party, which shall be paid by the Contractor from the remuneration received from the Principal, official fees and bank charges. The Service Provider has the right to require immediate payment and to refrain from performing the Contractual Activities until the funds have been credited.
14. Notwithstanding the foregoing, the Principal shall be obliged to pay all fees required by the relevant offices for the registration of the trade mark(s) in the People’s Republic of China or in other countries, if so indicated in the Price List and whenever the fees increase between the conclusion of the Contract and the date of performance of the Contractual Activities.
§ 3.
User registration.
1. Prior to the start of the Services, each potential User is required to register in the dedicated application /form on the website or by means of a written form, i.e. to provide their data in accordance with the form provided and to accept the Terms and Conditions and Annexes. This is necessary to conclude the targeted Contracts with the Service Provider. Acceptance of the documents via the application is tantamount to the conclusion of the Contract.
2. The Service Provider has the right to create or enable the User to create an account through which the User will use part of the Services or purchase them .
§ 4.
Conclusion and termination of Contracts.
1. Acceptance of the Terms and Conditions without concluding a Contract does not impose an obligation on the Service Provider to provide any Services. The Service Provider is obliged to provide the Services described in the Contract in accordance with the prices stated in the Price List.
2. Rights under the Contracts and the Terms and Conditions may not be transferred by the User to any third party without the express written consent of the Service Provider.
§ 5.
Confidentiality.
1. The Parties are obliged, during the term of the Agreement and in the period after its termination indefinitely (and in any case for no less than 15 years), to keep confidential and undertake not to disseminate any Confidential Information. In particular, the Parties undertake not to disclose, transmit or use such information and methods constituting Confidential Information, either for their own benefit or that of third parties.
2. During the term of the Agreement, the Parties shall not, without the express consent of the other Party, do the following: disclose any Confidential Information to third parties, keep for themselves, copy, reproduce, in any form or by any means (electronically, mechanically, by recording, making photocopies, using a private email box or private storage media or otherwise), any documents, except as may be necessary for the performance of the obligations imposed on the Parties, subject to confidentiality.
3. The Parties acknowledge that all documents and other materials pertaining to a Party and its business activities, as well as any copies of such documents, are the exclusive property of that Party.
§ 6
Data protection.
1. The Principal entrusts the Contractor, with the processing of personal data processed in the personal data files of which the Contractor is the controller, exclusively for the purpose of performing the Contractual Activities specified in the Agreement/Regulations and to the extent indicated in the Agreement/Regulations, necessary for the performance of the Contractual Activities specified in the Agreement, as well as for marketing purposes. The Contractor may entrust data processing to a third party and process the data outside the territory of the Republic of Poland, including being entitled to process the data through servers located outside the said territory. The Contractor declares that he is aware of all relevant legal acts treating the subject matter and undertakes to process the personal data entrusted to him in accordance with these provisions. In order to properly ensure the security of the personal data processed under the Agreement/Regulations, the Contractor undertakes to exercise due diligence, including compliance with the legal acts in force in this regard. The Contractor shall be liable, both vis-à-vis third parties and vis-à-vis the Principal, for damages arising in connection with the processing of personal data entrusted for processing contrary to the terms of the Agreement and generally applicable legal acts, unless it is not at fault .
2. The entrustment referred to above concerns the collection, recording, storage and deletion of personal data of the persons mentioned above in the performance of the Contractual Activities.
3. The personal data referred to above may only be processed for the purpose of performing the Contractual Activities covered by this Agreement and for the Contractor’s marketing purposes.
4. The Contractor shall be obliged to take necessary organisational and technical measures to properly secure the personal data entrusted to him. The applied safeguards shall protect the processed data from being disclosed to unauthorised persons, from being taken by an unauthorised person, from being damaged or destroyed.
5. In the case of the processing of entrusted personal data in a computer system, the Contractor shall apply technical and organisational measures in accordance with the requirements of the relevant legislation governing the protection of personal data.
6. The Contractor shall maintain the confidentiality of the data processed – both during the term of this contract and after its termination. paper print-outs containing the data.
7. Pursuant to Article 13 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 the repeal of Directive 95/46/EC (General Data Protection Regulation), hereinafter abbreviated as RODO, you are informed that the Contractor is the Data Controller. The personal data shall be processed for the purpose of concluding and implementing the provisions of this contract. The legal basis for the processing of personal data is the contract (Article 6(1)(b) RODO). Personal data may be disclosed to public authorities under applicable law. Personal data may be disclosed to processors, i.e. entities processing on behalf of the Data Controller based on Article 28 RODO (entrustment of processing). The personal data contained in the contract will be processed for a period based on the current legal provisions. You are informed of the right of access to your personal data, the right to rectification and restriction of processing. You are informed of the right to object to the processing of your personal data and also of the right to data portability. You are informed about the right to lodge a complaint to the supervisory authority. The supervisory authority is the President of the Office for the Protection of Personal Data with its seat at 2 Stawki Street in Warsaw (www.uodo.gov.pl). The provision of personal data is a condition for the conclusion of the Agreement. Failure to provide personal data will result in the lack of conclusion of the Agreement and the execution of its provisions.
8. The Contractor shall be entitled to use the Contractor’s personal data in its possession to offer other services, including services in the Contractor’s new territories of operation, as well as to inform about events related to the Contractor’s marks, such as information about an application for the expiry or cancellation of trademark rights, oppositions, information about an impending renewal of protective rights, responses to letters from the office and similar.
9. The Principal has the right to terminate the power of attorney at any time, but must appoint a new attorney in any territory in which the Contractor performs or has performed services.
§ 7.
Final provisions.
1. It is assumed that the Principal speaks English to the extent th at he or she has an unrestricted understanding of e-mails with comments or guidelines in connection with the performance of trademark protection services, and thus agrees to receive e-mails written partly or entirely in English.
2. The Service Provider reserves the right to amend the provisions of the Terms and Conditions and the Price List at any time. Information about the change together with the current wording will be published on the Service Provider’s website and possibly in the dedicated application at least 3 days in advance.
3. The Contract and the Terms and Conditions shall be governed by Polish law, and the common courts of the Republic of Poland shall have jurisdiction to settle any disputes. In matters not regulated by the Agreement, the relevant provisions of the Civil Code shall apply.
4. The assignment of rights under the Contract by the Contractor shall not require the prior consent of the Principal.
5. Should individual provisions of the Agreement or these Terms and Conditions be wholly or partially ineffective, invalid, unenforceable or should a gap in the Agreement/Regulations be found, the remaining provisions of the Agreement/Regulations shall not be affected thereby. In place of the ineffective, invalid or unenforceable provisions, as well as in order to fill in the gap, an appropriate regulation shall be deemed to have been agreed that, within the framework of legally permissible solutions, corresponds best in terms of economic effect to what the parties intended by making the ineffective, invalid or unenforceable determination and which, in accordance with the meaning of the Agreement/Regulations and its purpose, they would have wished to achieve in the first place before invoking the legal regulation, if they had taken this regulation into account in the first instance in a subsidiary manner.
6. The contents of the Service Provider’s website are for information purposes only. It does not constitute source of law, legal or business advice and should not be treated as such. The data, opinions, comments and any other trademark related information provided are intended only to provide general information on the topics discussed. They reflect the personal views of the authors and are not intended to be relied upon as specific legal, business or other professional advice. The Service Provider endeavours to ensure that the content of the Website is accurate and up to date, but does not guarantee that it is factually correct and up to date. The Service Provider shall not be liable for the consequences of the use of the aforementioned content by the Client or the visitor to the Website. In case of need for professional legal advice in a given market, it is recommended to consult a relevant specialist.
7. The Parties unanimously agree that the purpose of this Agreement is to create between the Parties to the Agreement such a legal relationship whereby the services provided by the Contractor to the Principal are to be treated as services provided within the framework of the Contractor’s non-agricultural business activity and not as performed by the Contractor within the framework of another legal relationship: employment relationship, contract for specific work or personally performed activity.