Terms and conditions

Last Updated: 29.05.2024

The parties are:

Commerce Media Tech sp. z o.o., with a registered office at ul. Lubicz 17G, 31-503 Kraków, Poland incorporated under the laws of Poland and registered in the companies register of the National Court Register held by District Court Krakow – Srodmiescie in Cracow XI Commercial Division (Sąd Rejonowy dla Krakowa – Śródmieścia w Krakowie XI Wydział Gospodarczy) under (KRS) no. 0000830352, having EU VAT ID: PL5272922087 and the share capital in the amount of 5 000 PLN

further referred to as: “Voluum”

and

The party submitting an application to become a Voluum user (the “Client”) 

These Terms and Conditions govern the Client’s participation in and/or use of certain services or features of Voluum Platform, a product owned and operated by Voluum. By registering as a Voluum Platform user or by using Voluum Platform, the Client agrees to be bound by these terms of service (the “Terms and Conditions”). These Terms and Conditions are effective as of the date of the Client’s registration as a Voluum Platform user. The integral part of these Terms and Conditions is Voluum’s Data Processing Agreement and End User Privacy Policy. Voluum’s privacy policy regarding processing of personal data is available at https://voluum.com/privacy-policy/ [“Website Privacy Policy“) and is incorporated by reference into this Agreement as well as it is a part of these Terms and Conditions.

1. Description

1.1. The “Voluum Platform” is a proprietary web application for measuring web traffic and reporting, which is hosted on Voluum’s servers and made available to the Clients through the website: voluum.com (the “Website”). To use Voluum Platform an internet connection and a web browser with Java support is required. To purchase the use of Voluum Platform services (the “Subscription”), the Client has to in particular choose relevant conditions on which it wants to have access to these services (the: “Plan”).

1.2. Voluum has designated and electronic point of contact related to the Voluum Platform that is intended for communication with the authorities of EU Member States, the Commission and the European Board for Digital Services (the: “Board”): [email protected]. The same point of contact can be used by the Client for direct and quick communication with Voluum. Communication can be conducted in Polish or English.

2. Access

2.1. Voluum grants to the Client a non-exclusive, non-assignable, and non-transferable right during the Term (as defined in section 12) to use Voluum Platform in accordance with all of the conditions set forth herein.

2.2. Before issuing the first invoice by Voluum, the Client is obliged to state its company name (including the company’s legal form), an address of the company, TAX/VAT ID, a first and last name of the person authorized to register an account on behalf of and for the Client, as well as contact data of the Client.

2.3. Access to Voluum Platform requires logging in using the Client’s email address and password. The Client’s email address shall be the one set up on the Client’s website domain name. Otherwise the person registering the Voluum account shall prove on request from Voluum (especially by sending a written authorization) that she/he is entitled to act on behalf of and for the Client. Voluum can demand such proof at any time.

2.4. The Client is solely responsible for their use of Voluum Platform. The Client shall not permit any third party to use or gain access to Voluum Platform and shall use reasonable security measures to protect against unauthorized usage and/or access. The Client is solely responsible for use of the Voluum Platform by their employees or any unauthorized person.

2.5. Voluum shall not access the Clients’ accounts for purposes other than administrative or support.

2.6. As a general rule, any Client can have only one account at the same time unless otherwise agreed by Voluum. The owner of the account is the Client that data is provided according to the point 2.2 of these Terms and Conditions and indicated on the invoices issued by Voluum. The Client must not open a new account if there is any outstanding balance for the Voluum Platform use. If it does, however, it authorizes Voluum to charge the amount due to a previous account from the Client’s credit card connected with the new account. Voluum is obliged to start provision of the Voluum Platform services only if all due amounts are paid by the Client.

2.7. If the person acting on behalf of one Client, will open a new Voluum Platform account on behalf of another Client, Voluum can refuse to provide Voluum Platform services for that other Client at its sole discretion. The second Client shall have no claims against Voluum related to refusal to provide services.

2.8. Any Client is obliged to use its business credit cards with regard to chosen payment method. If the Client choose the consumer card instead of business credit card, it undertakes to repay Voluum all costs, expenses or lost benefits connected with payments made by a consumer card as well as it waives its right to claim damages, especially in the amount of commission paid in the higher amount that stated in the relevant law provisions. The Client also authorizes Voluum to charge relevant amounts from its credit card.

2.9. In order to enable the Client to use Voluum Platform and handle the Clients’ campaigns, Voluum provides the Client with a domain individually assigned to the Client’s account (the “Dedicated Domain”). 

Voluum is the sole owner of the Dedicated Domain. The Dedicated Domain is assigned to the Client solely for use of Voluum Platform services for the chosen Plan. The Client is not entitled to use the Dedicated Domain for purposes other than using Voluum Platform during the chosen Plan.

Voluum reserves the right to refuse to grant the Client the Dedicated Domain or to block the Dedicated Domain if the Client breaches the Terms and Conditions, in particular if the Client uses the Dedicated Domain for illegal purposes. The Client is solely liable for all activities related to the Dedicated Domain, within all possible use, including content that the Dedicated Domain redirects to.

2.10. Voluum may equip the Dedicated Domain with an SSL certificate in order to use HTTPS in the Client’s campaigns using the Dedicated Domain. Voluum is a sole owner of an SSL certificate.

Voluum reserves the right to choose an SSL certificate for the Dedicated Domain, what the Client accepts. The Client is not entitled to request that Voluum shall choose an SSL certificate specified by the Client. 

The Client will be entitled to use an SSL certificate within the Dedicated Domain for the term of the Plan exclusively for using Voluum Platform. The Client is not authorized to use this certificate for any other purposes. 

The Client is solely responsible for the use of the SSL certificate and for ensuring compliance with the Terms and Conditions and the provisions of applicable law. 

Voluum reserves the right to refuse to grant the Client an SSL certificate for the Dedicated Domain or to deactivate an SSL certificate if the Client does not use this certificate over 60 days or if the Client breaches the Terms and Conditions or uses an SSL certificate in the unlawful way.

2.11. Voluum provides the Client with a possibility to add their own domain to the Client’s account (the “Custom Domain”) as well as with a possibility of using a SSL for the Custom Domain. The feature might be an additional package not included in the pricing plan (for more information, go to ‘Pricing’ section).

2.12. In order to upgrade to the custom Plan with the Custom Domain and the SSL for the Custom Domain, the Client needs to follow the instructions included in doc.voluum.com in section ‘Enabling SSL Custom Domain’. In particular, the Custom Domain should be CNAME’d to the Dedicated Domain in order to work properly. By CNAME’ing the Custom Domain to the Dedicated Domain by the Client for use of Voluum Platform services, the Client authorizes Voluum to request for the SSL certificate in order to use HTTPS in the Client’s campaigns using the Custom Domain, on the Client’s demand. In order to start using the SSL certificate for the Custom Domain, the Client has to request it manually using the Voluum Platform panel.

2.13. Upgrading to the custom Plan (with the SSL certificate for the Custom Domain) may require an additional monthly payment (for more information, go to ‘Pricing’ section).

2.14. The Client is the sole owner of the Custom Domain.

2.15. The Client can use the Custom Domain with the SSL solely for use of Voluum Platform services by the Client for the term of the Plan. The Client is not entitled to use the Custom Domain for purposes other than using Voluum Platform during the term of the Plan. Voluum reserves the right to refuse the Client’s request for using the Custom Domain or block the Custom Domain from Voluum Platform services if the Client breaches the Terms and Conditions, in particular if the Client uses the Custom Domain for illegal purposes. The Client is solely liable for all activities related to the Custom Domain, within all possible use, including content that Custom Domain redirects to.

2.16. The Client can delete or replace the Custom Domain with the SSL certificate within the duration of the Plan only upon Voluum’s prior approval. Such changes (deletion or replacement of the Custom Domain for which the SSL certificate was issued) may require an additional payment as set out on a case by case basis by Voluum. Voluum reserves also the right to refuse the Client’s request for deletion or replacing the Custom Domain, to which the SSL certificate was issued, to another/new Custom Domain, for any reason that Voluum finds valid, including but not limited to where the Client’s request for changing or replacing the Custom Domain took place more than once in the billing period. In order to get more information in this matter the Client should contact Voluum’s Customer Support Team.

2.17. Voluum reserves the right to choose an SSL certificate for the Custom Domain. The Client is not entitled to demand that Voluum chooses an SSL certificate specified by the Client. The Client is entitled to use the SSL certificate issued for the Custom Domain within the duration of the Plan exclusively for using Voluum Platform. The Client is not authorized to use this certificate for any other purposes.

2.18. The Client is solely responsible for the use of the SSL certificate and for ensuring  compliance with the Terms and Conditions and the provisions of applicable law.

2.19. Voluum reserves the right to refuse the Client’s request for the SSL certificate for the Custom Domain. Voluum has the right to deactivate the SSL certificate when the Client does not use this certificate over 60 days or if the Client breaches the Terms and Conditions or uses the SSL certificate in an unlawful way.

3. The Client’s requirements

3.1. The Client shall provide true, accurate and current information to Voluum and shall maintain all account information, ensuring it is true, accurate and up-to-date. Otherwise the Client is fully liable (including financial liability) for any untrue, inaccurate or incorrectly provided information and data.

3.2. The data indicated on the invoice issued to the Client shall be the same as the one provided by the Client according to point 2.2 of these Terms and Conditions. The Client is not allowed to enter the data of another entity without Voluum’s consent – even if it does so, that does not mean a transfer of the account’s ownership to this entity.  In case of any change of that data as well as any other data provided by the Client (including email address), the Client is obligated to provide Voluum with accurate data as well as send Voluum a documentation that proves such changes.

3.3. When an individual, the Client represents and warrants: he/she is at least 18 years old, has full capacity to perform acts in law and is an individual running a business (i.e. the Client is not a consumer).

3.4. When a person signing to Voluum Platform acts on behalf of their employer or an entity, this person represents and warrants he/she has full legal authority to bind their employer or such other entity to these Terms and Conditions. In case of doubt, Voluum is entitled to demand proofs confirming that the person is entitled to act on behalf of and for the Client. 

3.5. The Clients shall not access, or attempt to access, Voluum Platform by any means other than through the means provided by Voluum.

3.6. The Client shall not attempt to obstruct, disrupt or interfere with the operation of Voluum Platform or other services provided by Voluum. The Client shall not interfere or attempt to interfere the website or the Services in any way through any means or device including, but not limited to using automation software, bots, spamming, hacking, uploading computer viruses or time bombs, or any unauthorized third-party software modifying or interfering the website or the Services or by any means prohibited by these Terms and Conditions or binding law. Voluum reserves the right to determine what conduct it considers to be in violation of the Terms and Conditions. Voluum reserves the right to control and verify compliance with these restrictions and limitations.

3.7. The Client shall not attempt to gain unauthorized access to accounts registered to other Clients, or any servers, systems or networks connected to Voluum Platform or Voluum’s websites.

3.8. The Client shall not obtain or attempt to obtain: (A) any information from the Voluum Platform, including without limitation: email addresses or phone numbers of other Clients or other software data; (B) intercept, examine or otherwise observe any proprietary communications protocol used by Voluum Platform, Voluum’s websites or servers, (C) use any software that is designed to provide a means of an unauthorized access to, or distort, delete, damage or disassemble Voluum Platform or Voluum’s websites or servers.

3.9. The Client shall not use Voluum Platform services, including any domain (dedicated or custom) and the SSL certificates assigned to the Client’s account, in a manner that is, or may potentially be illegal, offensive, obscene, immoral, publicly objectionable within the online community, or deteriorate quality, value and reputation of Voluum or Voluum Platform services. In particular, the Client may not use Voluum Platform, the SSL certificates and any domain assigned to the Client’s account for: pornographic purposes (including but not limited to child pornography), advertising and promotion of prohibited products or substances, infringement of any rights, harassment, threats, phishing, money laundering, impersonating another person or entity, in order to commit any crime or offense, violating the rights of third parties as well as breaching any applicable law or good practices. Voluum reserves the right to control and verify compliance with these restrictions and limitations. Without prejudice to the other provisions of the Terms and Conditions, the Client’s breach of aforementioned rules shall be treated as a material breach of the Terms and Conditions.  Voluum is entitled to immediately suspend the provision of services as well as block the Client’s account if it assumes that the Client or the person using the Voluum Platform account breached the Terms and Conditions. The Client accepts abovementioned and declares that in the aforementioned conditions, they shall have no claims over Voluum with regard to suspension of or blocking the services, accounts, domains or SSL certificates.

3.10. Client shall ensure that all their materials and content entered into the Voluum Platform are free from viruses, worms, Trojan horses, and other malicious code. Any content provided for Voluum Platform cannot: (i) be used to conduct unauthorized advertising, promotional and marketing activities, in particular by placing advertisements, selling and promoting products, services, projects and collections that are unlawful or violate the rights of third parties, (ii) be used to conduct activities prohibited by law, e.g. attempts to fraud and extort funds from other persons or entities, (iii) incite or condone violence against any living being, including animals, (iv) propagate any fascist or other totalitarian state system, (v) incite hatred or insult group of people or individual persons on the basis of gender, sexual, national, ethnic, racial or religious differences or lack of religious denomination, or condone such hatred or insult, (vi) defame or insult any third party, (vii) violate the personal rights of any third party, (viii) contain profanity or other offensive content, (ix) encourage dangerous behavior or approve of such behavior, (x) violate the applicable legal order or good customs in any other way, for example in terms of the sale of non-compliant or counterfeit products, the sale of goods or the provision of services in violation of consumer protection law, unauthorized use of copyrighted materials.

3.11. In any case of breaching the Terms and Conditions by the Client, Voluum is entitled to ban the Client’s account. It means no longer access for the Client to the account and no use of the Voluum’s services. In case of banning, the Client is not entitled to a refund. In exceptional cases, Voluum may, however, restore performance of its services according to the chosen Plan.

3.12. Voluum may be provided with notice of illegal content via the special contact form (https://voluum.com/dsa/) or verify the content of its own using a designed person. In the event of a notice regarding materials or content that is illegal or inconsistent with these Terms and Conditions, Voluum will, without undue delay, send the person or entity that submitted the notice a confirmation of its receipt to the indicated contact details. Within 14 days, Voluum will also inform about its decision regarding the information covered by the notice. If illegal or inconsistent content is identified, Voluum will take actions described in point 3.13 below, and the Client, who originally provided it, will be informed about aforementioned actions along with appropriate justification. The justification will include the following information: (i) kind of actions taken by Voluum, (ii) facts and circumstances on the basis of which the decision was made, (iii) the basis of the decision made i.e. external notice or voluntary screening activities conducted by Voluum, (iv) legal basis and reasons for classifying the content as illegal, (v) legal basis and reasons for classifying the content as inconsistent with the Terms and Conditions, (vi) information on the Client’s options to appeal against the decision, including out-of-court dispute resolution and judicial remedies. The person or entity that submitted the notice, as well as the Client, may appeal against the Voluum decision. The appeal should include comprehensive justification and be submitted within 14 days of receiving information from Voluum. The appeal will be considered by Voluum within 14 days of its receipt.

3.13. If the Client’s materials or content is illegal or inconsistent with these Terms and Conditions, Voluum can take in particular following actions: remove the materials or content from the Voluum Platform, prevent access to materials and content, limit or disable materials or content monetization, suspend or terminate provision of Services to the Client, suspend or terminate the Client’s Account.

3.14. Additionally, where Voluum becomes aware of any information giving rise to a suspicion that a criminal offence involving a threat to the life or safety of a person or persons has taken place, is taking place or is likely to take place, it shall promptly inform the law enforcement or judicial authorities of the EU Member State(s) concerned of its suspicion and provide all relevant information available.

4. Intellectual Property

4.1. The Client shall not rent, lease, sublicense, distribute, transfer, copy, or modify Voluum Platform.

4.2. The Client shall not adapt Voluum Platform in any way or use it to create a derivative work.

4.3. The Client shall not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code of Voluum Platform.

4.4. The Client shall not use Voluum Platform in any manner, or in connection with any content, data, hardware, software or other materials, that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias), (D) violates any applicable law, ordinance, rule, regulation or treaty.

5. The End users’ data

5.1. By using Voluum Platform – an online platform for measuring web traffic and reporting, the Client may collect or use some data regarding activities of end users. This data may include information about IP addresses, session-based browsing behaviour, device-related data (the „Data”). Voluum does not collect data which by itself identifies an individual such as name, address, phone number, email address. Detailed information regarding types of data of end users that may be collected or used by the Client through Voluum Platform is specified in the Voluum’s Data Processing Agreement referred to in point 5.2. below and in the Voluum’s End User Privacy Policy. The Client shall note that any references to “end users” mean the end user of an internet connected device, such as a visitor to a web page, a user of a mobile app, or a user of an IoT device, or a visitor on advertisement or campaign webpage.

5.2. If any Data is personally identifiable information or personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (the  “Personal Data” and “GDPR”  respectively), and the processing thereof, shall be governed under the terms and conditions set forth in the Voluum’s Data Processing Agreement (the “DPA”). The DPA is an integral part of these Terms and Conditions. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to the Personal Data included in the Data processed in connection with Voluum Platform services, the Client shall be considered as the “Controller” or the “Processor” of the Personal Data and Voluum shall be considered as the “Processor” or the “another Processor” (the “Sub-Processor”), as applicable, according to the terms defined under the GDPR and the DPA. The Client represents and warrants that Voluum is permitted to collect, use and transfer Data on behalf of the Client in order to provide Voluum Platform services according to the terms defined under DPA.

6. Service Standards

6.1. Voluum reserves the right to modify Voluum without notice and without liability.

6.2. Voluum has no obligation to review the Client’s use of Voluum. Voluum does not control, nor is to be held responsible for the Client’s use of Voluum or any of the content that the Client sends or receives through Voluum.

6.3. In any case of breaching the Terms and Conditions by the Client, Voluum is entitled to ban the Client’s account. It means no longer access for the Client to the account and no use of Voluum’s services.

7. Proprietary Rights

7.1. As between Voluum and the Client, Voluum shall have all rights to use algorithms, methods of computation and data processed by Voluum to measure network traffic, the Events (as defined in section 15.3), used for geolocation or categorization of network traffic or any other data of statistical nature necessary for proper functioning of Voluum Platform or features thereof (the: “Processed Data”), including all applicable rights to use of patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto. All rights not expressly granted to the Client herein are reserved to Voluum and other entitled entities.

7.2. The Client’s materials (i.e. ads, campaigns, landers, labels, etc.) are and shall remain their sole and exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto.

8. Support

8.1. Voluum shall not be obligated to provide the Client with any support, but may elect to do so at its sole discretion. In the event, technical support shall be delivered in English based on the Plan chosen by the Client, and refers to the working days Monday through Friday, from 9:00 to 17:00, Eastern European Time. Detailed information on technical support is posted on Voluum website: https://doc.voluum.com/

9. Confidentiality

9.1. The Client agrees to safeguard and, except Voluum’s written consent, not to disclose to anyone any proprietary or confidential information acquired in relation to the Client’s access to Voluum Platform. Such information includes, without limitation, Personal Data, principles of operations of Voluum Platform, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds (hereinafter referred to as “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of the Client, (ii) was already in the Client’s possession or known to the the Client prior to being disclosed or provided to it by or on behalf of the other party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to Voluum or any other party with respect thereto, (iii) was or is obtained by the Client from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary obligation of confidentiality to Voluum or any other party with respect to such information or material, or (iv) is independently developed by the Client without reference to the Confidential Information.

9.2. The Client shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. The Client agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Voluum’s rights therein. The Client shall use its best efforts to assist Voluum in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, the Client shall advise Voluum immediately in the event the Client learns or has reason to believe that any person to whom the Client has given access to the Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other proprietary rights of Voluum, and the Client shall, at the Client’s expense, cooperate with Voluum in seeking injunctive or other equitable relief in the name of the Client or Voluum against any such person. The Client agrees to maintain the confidentiality of Voluum’s Confidential Information using at least as great a degree of care as the Client uses to maintain the confidentiality of the Client’s own most confidential information (and in no event less than a reasonable degree of care). Especially, the Client is obliged to conclude non-disclosure agreements with any person that has access to the Client’s account, which content shall allow for objective protection of Confidential Information The Client acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation Voluum Platform or any other Confidential Information referred to herein, or any information which, at law  ought to remain confidential, shall immediately give rise to continuing irreparable injury to Voluum inadequately compensable in damages at law, and Voluum is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Voluum may immediately terminate the Client’s account and all license rights granted herein, in the event the Client breaches any of its confidentiality obligations.

9.3. The disclosure of the Confidential Information is not a breach of these Terms and Conditions if it was made due to the demand of common courts, administrative courts, public authorities due to the obligation stipulated by the provisions of applicable law and the Client notifies Voluum immediately about this obligation and in any case before the disclosure and discloses the Confidential Information only in the least possible extent.

9.4. The Client is obliged to keep confidentiality of the Confidential Information during the term of the Agreement and for 20 (twenty) years after its termination. Voluum may immediately ban the Client’s account and terminate all license rights granted herein, in the event the Client breaches any of its confidentiality obligations

10. Indemnification

10.1. The Client shall indemnify, defend, and hold harmless Voluum (including Voluum Parties as defined below) from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by Voluum, known or unknown, contingent or otherwise, directly or indirectly arising from the Client’s breach of any term or provision of these Terms and Conditions or any way related to the Client’s use of Voluum Platform, including but not limited to any claim that the Client’s website is owned by someone other than the Client or that the website infringes on the intellectual property rights of a third party. Voluum shall notify the Client of any such claim and shall cooperate with the Client, at the Client’s expense, in defending or settling such claim. The Client must  not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Voluum rights without Voluum’s prior written consent. Voluum may join in defense with counsel of its choice at its own expense. If the Client does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, Voluum may defend against such claim in such manner as it may deem appropriate at the Client’s expense, including, without limitation, settling such claim, after giving notice of the same to the Client.

11. Limitation of Liability

11.1. VOLUUM AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, AFFILIATE PARTIES, USERS AND AGENTS (COLLECTIVELY THE “VOLUUM PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING THE CLIENTS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE VOLUUM PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OF VOLUUM OR PERFORMANCE OF THE CLIENT’S WEBSITES REMAINS WITH THE CLIENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE VOLUUM PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF VOLUUM PLATFORM, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PLATFORM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF VOLUUM. THE PLATFORM IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY THE CLIENT SHALL BE AT THEIR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VOLUUM PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR TORT/DELICTS, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ANY DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THE TERMS AND CONDITIONS OR ANY RELATED DOCUMENT OR THE USE OF OR INABILITY TO USE VOLUUM, EVEN IF VOLUUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE ABOVE LIMITATION OF LIABILITY IS DEEMED INVALID BY THE COMPETENT COURT, THE TOTAL, CUMULATIVE LIABILITY OF THE VOLUUM PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE LAST CAMPAIGN.)LIABILITY OF THE PARTIES IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, IT MEANS THAT IT IS LIMITED ONLY TO DAMAGES CAUSED BY INTENTIONAL FAULT OF ANY OF THE VOLUUM PARTIES. 

11.2. NOTWITHSTANDING THE ABOVE, SOLELY IN CASE THE VOLUUM SERVICES ARE NOT BEING PROVIDED FOR MORE THAN 7 DAYS, THE CLIENT MAY REQUEST THE COMPENSATION ONLY IF ALL ISSUED INVOICES ARE SETTLED. ANY AMOUNTS INCLUDING THE COMPENSATION CANNOT BE DEDUCTED FROM THE INVOICE ISSUED BY VOLUUM, ALSO IN THE WAY THAT IT COULD LEAD TO THE ISSUANCE OF A CORRECTIVE INVOICE. 

12. Term

12.1. These Terms and Conditions are effective as of the date the Client registers as a Voluum Platform user and accepts the conditions stated herein. The Agreement is concluded between the parties at the same time. After the aforementioned actions of the Client, the account is created by Voluum. This means that by participating in or using the services or features of Voluum Platform, you are agreeing to be bound by the Terms and Conditions. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the services shall be subject to and shall abide by these Terms and Conditions.

12.2. The Agreement may be concluded for a definite or indefinite period by the parties. The services are provided by Voluum to Client on a month-to-month basis. 

13. Termination

13.1. The Subscription (an access to the Voluum Platform services) shall continue unless and until Voluum terminates it or the Client cancels it in the Voluum Platform panel/Settings/Billing & Subscription tab or by contacting Voluum’s Customer Support Team via email [email protected]. Regardless of the circumstances, such termination shall not give rise to Voluum’s liability.

13.1.1. To prevent the automatic renewal of the annual or longer Plan, the Client is required to provide written notice of its intent to not renew the Subscription, no less than sixty (60) days prior to the end of the current Plan.

13.2. In the event of any termination the Client shall not be entitled to any refunds of any fees. Any outstanding balance for Voluum Platform use rendered through the date of termination, and other unpaid obligations during the remainder of the billing period shall be immediately due and payable in full. All data, files or other information stored in the Client’s account shall be no longer available to Client except as provided in the DPA.

13.3. The termination of this Agreement shall automatically, and without further action by Voluum, terminate and extinguish the Client’s right to use Voluum Platform.

13.4. Voluum may suspend or terminate the Client’s access to Voluum Platform at any time, without advance notice, for any reason that Voluum finds valid in its sole discretion, including but not limited to where Voluum believes that:

1. the Client is in any way in breach of the Terms and Conditions or terms regarding other services provided by Voluum on the basis of separate agreements or there is a suspicion of such breach;
2. the Client, at any time, is conducting activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations;
3. the Client is late with any payment for the usage of Voluum Platform for the period of 7 days from the date of payment;
4. the Client’s overage charges (referred to in point 15.3. of this Terms and Conditions) have been exceeded by two times in relation to the pricing plan chosen by this Client;
5. account takeover occurred or suspects fraud e.g. when any payment was reversed or chargeback was initiated.

14. Modifications

14.1. Voluum is entitled to modify the Terms and Conditions or billing plans at any time in its sole discretion and pursuant to applicable law. Amended versions of the Terms and Conditions or new billing plans shall be effective upon providing the Customer with a notice of at least 2 (two) weeks.  Modifications to billing plans come into force at the beginning of the next billing period. 

14.2. Your continued use of Voluum Platform after the effective date of any such notice shall constitute your acceptance of and agreement to such changes. IF THE CLIENT DOES NOT WISH TO BE BOUND TO NEW TERMS AND CONDITIONS, IT MUST TERMINATE THE AGREEMENT AT LEAST ONE DAY BEFORE THE EFFECTIVE DATE OF NEW TERMS AND CONDITIONS BY AN EMAIL NOTICE.

14.3. If due to the change of the Terms and Conditions, its provisions come into force during the notice period, the previous content of the Terms and Conditions shall prevail with respect to the parties’ relations.

15. Payments

15.1. The Client must provide Voluum with a current, valid, accepted method of payment (the “Payment Method”) and billing details to use Voluum Platform services, subject to provision of point 3.2.

15.2. Upon the registration and at the beginning of each Plan the Client’s Payment Method shall be charged with the subscription fee according to the ‘Pricing’ section’ or as individually agreed with the Client (the: “Subscription Fee”). First monthly billing period for the Plan (the “Billing Cycle”) starts when the invoice is issued and lasts for the entire period purchased. The Client gains access to its account when the full amount of the Subscription Fee is credited to the Voluum’s account. If in a given month there is no day corresponding to the day when the Billing Cycle began, the Billing Cycle shall end on the previous day or on the following days according to Voluum’s sole discretion. The next Billing Cycle starts accordingly, however the Billing Cycle starting date may change due to changes in Subscription such as an upgrade.

15.3. All Plans adhere to the usage structure which is defined as the “Event”. The Event is defined as a visit, click, conversion, and impression (with 10 impressions being counted as 1 Event), any and or all of which will be totaled to calculate final costs. The number of the Events included in the Client’s Subscription depends on the chosen Plan, the Client will be additionally billed for the extra number of the Events (the “Overages”) accrued during the previous Billing Cycle. Events and Overages are calculated on the monthly basis. On an individual basis Voluum reserves the right not to take into account and measure any Events that exceed the limit specified in the chosen Plan. Overage charges are determined in accordance to the Plan. The cost associated with the Overage’s use is defined in the ‘Pricing’ section or individually agreed with the Client.

15.4. The total amount of the Subscription Fee varies depending on the Client’s chosen Plan, cost of Overages and cost of any additional features, services or modifications of the Client’s account that were not included in the pricing plan (for more information, go to the ‘Pricing’ section).

15.5. To ensure uninterrupted service, the monthly Subscription is renewed automatically and the Subscription Fee will be charged on a monthly basis according to the Payment Method chosen by the Client upon the registration and at the beginning of each Billing Cycle. In the event that the Billing Cycle begins on a day not included in a given month, Voluum reserves the right to bill according to the chosen Payment Method and point 15.2 of these Terms and Conditions.

15.6. The Subscription Fee for the annual and longer Plans is payable in whole and in advance. Overage charges apply also to the annual Plans and are settled according to point 15.3 above. On an individual basis Voluum reserves the right to sign an additional agreement (the “Insertion Orders”), in particular with Clients who choose the Plan  longer than 12 months or if the Plan  is individually agreed. Voluum also reserves the right to apply discounts on any of the Clients’ Subscription Fees at the moment of Subscription. The price on the invoice will be reduced by the discount granted.

15.7. Each Subscription consisting of the annual or longer Plan  shall automatically renew for a successive term corresponding to the duration of the chosen Plan (e.g. the Subscription with the annual Plan is automatically renewed for another one year term). To prevent the automatic renewal, the Client is required to provide written notice of its intent to not renew the Subscription, no less than sixty (60) days prior to the end of the current Plan. The Subscription Fee for any Plan (including annual or longer) is non-refundable if the Client terminates the Agreement. The Subscription Fee paid already in advance for the current Plan is non-refundable as well if the Client terminates the Subscription earlier.

15.8. The chosen Plan can be upgraded  and the new Plan begins at the moment of upgrade. The chosen Plan can be downgraded at the end of its validity d and it is not subject to refund.

15.9. The Client has to cancel (terminate) the Subscription (in the Voluum Platform panel/Settings/Billing & Subscription tab or by contacting Voluum’s Customer Support Team via email [email protected]) before it renews in order to avoid billing for the next Billing Cycle.

15.10. If the payment cannot be charged to the Client’s credit card, Voluum may suspend or terminate the Client’s account and the Client shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Voluum in collecting due amounts plus interest at the highest rate permissible under Polish law.

15.11. All payments are in United States Dollars. The Client’s account shall be debited with corresponding fees in accordance with current rates.

15.12. Voluum reserves the right to change its payment policies any time in its sole discretion.

15.13. As a rule, Voluum does not grant any refunds. In no case while using Voluum Platform services, the Client is entitled to a refund of any expenses, costs or other amounts incurred by the Client due to the use of services provided by Voluum, especially to refund of the Subscription Fee if the Client terminates the Subscription earlier than on the end of a period of the chosen Plan.

15.14. According to the relevant payment providers’ policies some of the transactions may demand Strong Customer Authentication (SCA), which means that electronic payment is performed with multi-factor authentication to increase the security of such a payment.

15.15. By accepting the Terms and Conditions, the Client concludes with Voluum the agreement on which basis it authorises Voluum to charge each month variable recurring amounts from the Client’s card in order to the payment of Subscription Fee and prospective Overages amounts without further action required from the Client (merchant-initiated transactions). In this case, only the first transaction shall generally demand SCA.

15.16. Variable recurring amounts are charged from the Client’s card on the basis of the chosen Plan and the amount of Overages calculated according to point 15.3 above.  

15.17. The type of used multi-factor authentication as well as demanding SCA in any case depends on the policy of the relevant payment provider that is used by the Client to make a payment.

15.18. The implementation of requirements regarding SCA may also lead to processing an increased amount of the Client’s Personal Data by these payment providers and transferring the increased amount of the one by Voluum to these payment providers, so it is recommended to respectively review the privacy policies available on their websites as well as the Privacy Policy of Voluum.

16. General

16.1. The Client shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against Voluum as well as value added tax in cases when Voluum is obliged to pay it according to the applicable law. The Client shall reimburse Voluum for the amount of any such taxes or duties paid or accrued directly by Voluum as a result of this transaction.

16.2. All agreements between Voluum and the Client shall be governed by, and construed in accordance with, the laws of Poland, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions.

16.3. Any litigation based hereon, or arising out of, under, or in connection with these Terms and Conditions (and all agreements between Voluum and the Client), shall be brought and maintained exclusively in the court in Cracow competent for Voluum’s registered office. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the above mentioned courts for the purpose of any such litigation as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.

16.4. Each of the parties hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms and Conditions and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.

16.5. These Terms and Conditions are made solely for the benefit of Client and Voluum and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions.

16.6. The Client may not assign any of its rights or delegate any of its duties under these Terms and Conditions without the prior written consent of Voluum. Despite such consent, no assignment shall release the assignor of any of its obligations or alter any of its primary obligations to be performed under these Terms and Conditions. Client hereby agrees that Voluum is entitled to assign any of its rights and obligations under these Terms and Conditions and additional agreements (if concluded with the Client) to any third party and at any time without separate consent of the Client.

16.7. Except as otherwise expressly provided in these Terms and Conditions, these Terms and Conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of Voluum or the Client.

16.8. The relationship of the Client and Voluum established by these Terms and Conditions is that of independent contractors, and neither party is the employee, agent, partner or joint venturer of the other party.

16.9. Neither party shall be deemed in default of the Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an event of force majeure. An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent i.e. riot, war, invasion, act of foreign enemies, hostilities, terrorism, strikes, flood, fire or other physical natural disaster, epidemic, strike, act or actions of government or shortage of materials or supplies.

16.10. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Voluum in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

16.11. Except as may be set forth in a written agreement signed between Voluum and the Client, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of the Voluum Platform between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.

16.12. If any provision of these Terms and Conditions is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of such provision.

16.13. If Voluum prevails in any action, suit, or proceeding arising from or based upon these Terms and Conditions, Voluum shall be entitled to recover from the Client Voluum’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.

16.14. The headings in these Terms and Conditions are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms and Conditions nor affect any of the rights or obligations of the parties.

16.15. Any notice, communication or statement relating to Terms and Conditions shall be done by an email unless the written form is reserved in these Terms and Conditions. The notice is deemed effective upon delivery to the contact data of the respective party as indicated herein or in the Client’s account. In the event of non-material changes to the Terms and Conditions (e.g. editorial changes, correction of obvious typographical errors), notice shall be deemed effective upon posting at Voluum Platform or Voluum Website. In the event of material changes to the Terms and Conditions (i.e. affecting the rights and obligations of the parties), notice shall be effective upon delivery to the email address last provided by the Client. In the event that the Client believes that the Agreement is not being performed in accordance with the provisions of the Terms and Conditions, it may submit a complaint to Voluum in the term of 14 (fourteen) days from noticing the breach of the Agreement by Voluum. All complaints will be handled within a reasonable timeframe, not exceeding 30 days. The notices and complaints of the Client can be sent to the following addresses: Commerce Media Tech sp. z o.o., with a registered office at ul. Lubicz 17G, 31-503 Kraków, Poland incorporated under the laws of Poland and registered in the companies register of the National Court Register held by District Court Krakow – Srodmiescie in Cracow XI Commercial Division (Sąd Rejonowy dla Krakowa – Śródmieścia w Krakowie XI Wydział Gospodarczy) under (KRS) no. 0000830352, having EU VAT ID: PL5272922087 and the share capital in the amount of 5 000 PLN. Attn: Legal Department or by email to: [email protected].

16.16. Sections Intellectual Property, Confidentiality, Indemnification and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms and Conditions shall survive and remain in effect after such happening.

16.17. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.