The following General Terms and Conditions (“GTC”) govern the relationship between POSpulse GmbH (hereinafter “We” or “POSpulse”) as Contractor and You as Client (hereinafter “You” or “Customer”). The relationship between POSpulse and Spotr as well as the use of the www.pospulse.com website is not the subject of these GTC.
With the conclusion of the Contract between You and POSpulse pursuant to para. II of these GTC, these GTC become a valid component of the Contract concluded between You and Us.
POSpulse operates a Platform (the “Platform”) at www.pospulse.com by which interested companies such as manufacturers, retailers, and service providers can place orders with POSpulse to research their products, shoppers (shopping experiences), actual situations, and third-party products at the point of sale in out of home and home segments.
POSpulse provides Customers with more information about actual situations at the point of sale and attitudes and experiences of their shoppers at and beyond the point of sale. This means that Customers can, for example, obtain information about the execution of promotions and quality specifications in retail outlets and their impact on end customers, the placement of their products in the retail outlets, and the perception of products and packaging by end customers.
POSpulse commissions what are called “Spotr” to handle Customer orders. Spotr are natural persons who have registered as members with POSpulse and perform orders using mobile devices on site at the point of sale. POSpulse provides user software for smartphones for this purpose (hereinafter the “App”), which the Spotr use to collect the respective data. There is no employer-employee relationship between POSpulse and the Spotr. Spotr perform orders on a voluntary, freelance basis and are paid for the correct and full performance of orders.
II. Conclusion of contract when placing an order
If a POSpulse Customer wishes to place an order, it must first of all transmit a request to POSpulse describing the services desired (hereinafter “Customer Request”) either via the Platform by e-mail to a contact person (email@example.com), or by phone.
Customers must describe the background and purpose of their orders as accurately as possible in the Customer Request. The following details in particular must be communicated between the Customer and POSpulse:
The address details of the retail outlets to be visited by POSpulse that are relevant to a Customer’s order, may, but do not have to be provided by POSpulse. Upon request by POSpulse, Customers agree to provide the relevant addresses of the retail outlets to be visited.
Customers shall also provide image files for the products relevant to the order.
Customer Requests may not violate any legal requirements and in particular may not have criminal, discriminatory, pornographic, or racist content. POSpulse reserves the right to review Customer Requests according to internal company criteria and to make adjustments where appropriate that are required in order to enable correct handling by the Spotr. POSpulse shall be entitled in particular to make technical edits to Customer Requests and their content, and prepare and adapt these and optimize wording such that they can be presented in a comprehensible and understandable manner on the mobile devices of the Spotr. POSpulse shall not change data and content that are essential for the order.
POSpulse reserves the right not to provide Quotes to individual Customers.
The specific requirements and the individual services desired by the Customer are prepared in dialog between the Customer and POSpulse.
Following a visual inspection and, where required, adaptation of a Customer Request, POSpulse shall provide the Customer with a Quote based on the Customer Request or the Customer’s objective, which includes all the services selected by the Customer and prices (the “Quote”).
Contracts regarding conducting orders will not be signed until the Quote has been accepted by the Customer.
Contracts shall be signed exclusively between the Customer and POSpulse. A contractual relationship shall not be established between the Customer and the Spotr. Spotr shall be commissioned exclusively by POSpulse.
III. POSpulse's Services
The services provided by POSpulse include among other things the design of questionnaires to be answered by the Spotr, the commissioning of Spotr and communication with them, as well as the evaluation of the data collected by the Spotr and the preparation of this data for the Customer.
Customers can also choose between different data analysis packages as well as other additional services.
Specifically commissioned services are derived from individual Quotes.
IV. Conducting of orders by POSpulse Spotr
Following confirmation by the Customer of the questionnaire to be completed, POSpulse shall commence data collection within a maximum of 5 work days depending on the workload of the employees.
POSpulse shall commission Spotr to collect the desired data. Spotr shall collect the data described in the Customer order at the points of sale in the retail outlets and collect the data using the App that transmits the data to POSpulse. The Spotr are required to complete questionnaires on site and also to take photos in order to provide the data necessary to answer the Customer’s questions.
The data sets collected by Spotr are sent to the POSpulse back end. POSpulse checks the data sets for completeness in relation to the requirements in the Customer order.
If, for example, the answers provided do not match the photos taken, or if questions have not been adequately answered or have not been answered in full, the data set will be rejected. If a data set is complete and meets the Customer’s requirements, it shall be accepted and automatically approved for evaluation in what is called the analytics dashboard. Customers only pay for accepted data sets.
POSpulse cannot guarantee that 100% of all the specified retail outlets will be visited and that complete data sets will be collected in these retail outlets. Spotr work on a freelance basis and are not subject to direction from POSpulse. POSpulse can only attempt to influence Spotr by additional recruitment, rewards, or communication. Pursuant to para. VI.3, the Customer shall only pay for retail outlets actually visited in which complete data sets are collected.
Customers shall be informed via the email address they have provided when an order has been completed or, if agreed, on receipt of the first results delivered by Spotr.
The data sets collected shall belong to POSpulse. POSpulse shall be entitled to use the data collected and prepared in anonymized form, internally and externally, for the production of benchmarks, industry reports, white papers, and press articles. Under no circumstances, shall specific details of individual orders be disclosed to third-party companies.
V. Analytics dashboard
Access to the analytics dashboard of POSpulse shall be set forth in the Quote.
Other access to the analytics dashboard and any additional services may be ordered by the Customer for an additional fee.
The analytics dashboard cannot currently be viewed or used on smartphones. The analytics dashboard can be used on an iPad, but with restricted functionality compared to desktop use.
The use of a current internet browser and an internet connection are required for trouble-free use of the dashboard. The use of Internet Explorer Version 9 or older is not supported. The Customer shall provide a suitable internet browser.
Customers shall pay POSpulse remuneration in accordance with Quotes for the POSpulse services defined in said Quotes.
POSpulse shall only explicitly provide the services defined to Customers in writing in the Quote.
If a Customer subsequently commissions other POSpulse services over and above those in the Quote (for example, individual evaluations in the analytics dashboard, adaptation cycles to the presentation style, data export to and evaluations in Microsoft Power Point, etc.) these shall also be subject to remuneration. The price quoted shall only explicitly include the creation of an evaluation dashboard for Customers, but not its repeated adaptation in line with Customer desires. POSpulse reserves the right to send a separate invoice for this following prior notification.
If not all the retail outlets relevant to a Customer order are visited, or if incomplete data sets are collected in one or more retail outlets, or if an adequate number of Spotr cannot be recruited to take part in a survey, only the remuneration for the participating Spotr or actual retail outlets visited in which complete data sets are collected shall be invoiced.
If at least 95% of the data sets commissioned (number of retail outlets to be visited or participating Spotr) are collected in full, POSpulse shall invoice the Customer for the full remuneration for 100% of the data sets.
If incorrect results are based on incorrect or incomplete information from the Customer in the order details or when the Customer produces the questionnaire, they shall be invoiced in full.
Remuneration from the Customer shall be payable in accordance with the payment terms that are recorded on the respective, valid invoice.
POSpulse shall endeavor to invoice 50% of the invoice amount following confirmation of order and 50% after the order has been completed.
The invoice amount is plus applicable value-added tax.
POSpulse shall be entitled to use Customer names and logos in external relationships as Customer references in its own media presence. Customers may refuse to allow references at any time.
Order details or names and/or departments of Customer contact persons shall not be used.
The liability of POSpulse, its legal representatives, and vicarious agents for injury to life, limb, or health as well as liability in accordance with the German Product Liability Act and for damages that are due to deliberate intent or gross negligence on the part of POSpulse, its legal representatives, and vicarious agents or to the acceptance of a warranty or procurement risk, shall remain unaffected by the following restrictions.
In the event of damages that are based on simple negligence by POSpulse, its legal representatives, and vicarious agents and that are based on the violation of an obligation that enables proper fulfillment of a contract in the first place, and on the fulfillment of which the contracting party can regularly rely (essential obligation), POSpulse shall only be liable for such damages that are typically foreseeable.
For data loss, POSpulse shall only be liable for the amount of the costs that would be typically incurred for recovery if the Customer had taken proper and regular action to create backup files.
Irrespective of para. 1 to 3, there shall be no further liability on the part of POSpulse. POSpulse shall not be liable for damage caused by Spotr in retail outlets. Customers shall exempt POSpulse from any third-party claims that third parties make against POSpulse on account of violations by a Customer of para. III.3 of these GTC.
Insofar as personal data is collected in the context of the contractual relationship with a Customer, the responsible office as defined by the German Data Protection Act (BDSG) shall be:
Customer terms and conditions that differ from these GTC shall only become part of contractual content if this has been expressly agreed in writing. Express objection is hereby made to deviating Customer general terms and conditions.
POSpulse reserves the right to update and amend these GTC from time to time. The latest version of the GTC is always available at the www.pospulse.com website.
These GTC and the contractual relationship between Customers and POSpulse shall be subject to the law of the Federal Republic of Germany.
The place of jurisdiction for any disputes arising in connection with these GTC shall be Berlin insofar as this is permissible.
Should one or more of the provisions in these GTC or parts thereof be ineffective or unenforceable, or should this be the case in the future, this shall not affect the validity of the other provisions in these GTC. The same shall apply to any loopholes. The Parties shall replace any ineffective or unenforceable provision by one that economically most closely reflects the meaning and purpose of the ineffective or unenforceable provision.