Last Updated: 12th August, 2019
The parties are:
Codewise spółka z ograniczoną odpowiedzialnością Sp. K.
with a registered office at Lubicz 17 G, 31 – 503 Cracow, Poland, incorporated under the laws of Poland and registered in the entrepreneurs register of the National Court Register held by the District Court Krakow – Srodmiescie in Cracow XI Commercial Division (Sąd Rejonowy dla Krakowa – Śródmieścia w Krakowie XI Wydział Gospodarczy) under the number: KRS 0000402705, Codewise EU VAT ID: PL5213623147, (the “Codewise”)
The party submitting an application to become a Voluum user (the “Client”)
Voluum is a proprietary web application for measuring web traffic and reporting, which is hosted on Codewise’s servers and made available to the Clients through the website: voluum.com (the “Website”). To use Voluum an internet connection and a web browser with Java support is required. To purchase the use of Voluum services (the “Subscription”), the Client have to in particular choose relevant term, during which he wants to have access to these services (the: “Subscription Period”).
2.1. Codewise grants to the Client a non-exclusive, non-assignable, and non-transferable right during the Term (as defined in section 12) to use Voluum in accordance with all of the terms and conditions set forth herein.
2.2. Before issuing the first invoice by Codewise, 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 requires logging in using 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 Codewise (especially by sending a written authorization) that she/he is entitled to act on behalf of and for the Client. Codewise can demand such proof at any time.
2.4. The Client is solely responsible for their use of Voluum. Client shall not permit any 3rd party to use or gain access to Voluum and shall use reasonable security measures to protect against unauthorized usage and/or access. The Client is solely responsible for use of Voluum by their employees or any unauthorized person.
2.5. Codewise 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 Codewise. The owner of the account is the Client whose data is provided according to the point 2.2 of these Terms and Conditions and indicated on the invoices issued by Codewise. The Client must not open a new Voluum account if there are any outstanding balance for Voluum use. If it does, however, it authorizes Codewise to charge the amount due of a previous account from the Client’s credit card connected with the new account. Codewise is obliged to start provision of the Voluum 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 account on behalf of another Client, Codewise can refuse to provide Voluum services for that another Client at its sole discretion. The second Client shall have no claims against Codewise 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 Codewise 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 Codewise to charge relevant amounts from its credit card.
2.9. In order to enable the Client to use Voluum and handle the Clients’ campaigns, Codewise provides the Client with a domain individually assigned to the Client’s account (the “Dedicated Domain”).
Codewise is the sole owner of the Dedicated Domain. The Dedicated Domain is assigned to the Client solely for use of Voluum services for the Subscription Period. The Client is not entitled to use the Dedicated Domain for purposes other than using Voluum during the Subscription Period.
Codewise 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. Codewise may equip the Dedicated Domain with an SSL certificate in order to use HTTPS in the Client’s campaigns using the Dedicated Domain. Codewise is a sole owner of an SSL certificate.
Codewise reserves the right to choose an SSL certificate for the Dedicated Domain, what the Client accepts. The Client is not entitled to request that Codewise 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 Subscription Period exclusively for using Voluum. 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.
Codewise 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. Codewise 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 Services, the Client authorizes Codewise 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 panel.
2.13. Upgrade 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 services by the Client for the Subscription Period. The Client is not entitled to use the Custom Domain for purposes other than using Voluum during the Subscription Period. Codewise reserves the right to refuse the Client’s request for using the Custom Domain or block the Custom Domain from Voluum 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 Subscription Period only upon Codewise’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 case by case basis by Codewise. Codewise 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 Codewise 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 Codewise’s Customer Support Team.
2.17. Codewise reserves the right to choose an SSL certificate for the Custom Domain. The Client is not entitled to demand that Codewise chooses an SSL certificate specified by the Client. The Client is entitled to use the SSL certificate issued for the Custom Domain for the Subscription Period exclusively for using Voluum. 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. Codewise reserves the right to refuse the Client’s request for the SSL certificate for the Custom Domain. Codewise has also 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 the unlawful way.
2a. The Trial Period
2a.1. Upon registration, the Client may be provided with a trial period of using Services (the “Trial Period”). The Trial Period generally lasts for 14-days or for another time specified by Codewise, subject to the provisions stated in point 2a.4. The Trial Period is available only for selected monthly plans.
2a.2. The Client agrees to comply with all terms and conditions (including limitations on the use of the Events as defined in section 15.3.) related to the Trial Period.
2a.3. Each Client must not create more than one account in order to receive any benefits under the Trial Period. Each Client may use the Trial Period only once.
2a.4. The Client is obliged to choose one of the plans made available by Codewise in the Trial Period. The Client may resign from the Trial Period at any time before its expiration also by purchasing full access to any monthly or yearly plan offered by Codewise. The Client can do it manually in their Voluum account settings. In any case the Trial Period expires at the date of the payment by the Client for the full access of the chosen plan.
2a.5. The Trial Period also expires automatically if the Client tries to purchase full access to any monthly or yearly plan offered by Codewise according to point 2a.4 above but there is a payment failure regarding the chosen plan. In this case, however, no charge shall be made by Codewise after the Trial Period expires.
2a.6. If the Client does not submit their declaration regarding termination of the Services during the Trial Period, they shall be charged by Codewise for the amounts relevant to using monthly plan chosen in the Trial Period.
2a.7. The Trial Period may not be available for the Clients registering their accounts in connection with affiliate programs, especially when they use specially prepared landing pages instead of Codewise’s website.
2a.8. The Client is obliged to pay the token amount indicated by Codewise in order to verify the Client’s credit card before the Trial Period starts. This amount is non-refundable. No other amounts shall be charged by Codewise during the Trial Period.
2a.9. If the Trial Period cannot be started or expired for any reason stated above and no plan was purchased by the Client or no charge was made for a plan chosen upon the registration, the Client shall not be able to use the Services.
- Client requirements
3.1. The Client shall provide true, accurate and current information to Codewise 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 . 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 Codewise with accurate data as well as send Codewise 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 acts on behalf of their employer or an entity, this person represents and warrants he/she has a full legal authority to bind their employer or such other entity to these Terms and Conditions. In case of doubt, Codewise 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 by any means other than through the website or the interface provided by Codewise.
3.6. The Client shall not attempt to obstruct, disrupt or interfere with the operation of Voluum or other services provided by Codewise. 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. Codewise reserves the right to determine what conduct it considers to be in violation of the Terms and Conditions. Codewise reserves the right to control and verify compliance with these restrictions and limitations.
3.7. The Client shall not attempt to gain an unauthorized access to accounts registered to other Clients, or any servers, systems or networks connected to Voluum or Codewise’s websites.
3.8. The Client shall not obtain or attempt to obtain: (A) any information from the Voluum, 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, Codewise’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 or Codewise’s websites or servers.
3.9. The Client shall not use Voluum 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 Codewise or Voluum services. In particular, the Client may not use Voluum, 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. Codewise 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. Codewise 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 account breached the Terms and Condition. The Client accepts abovementioned and declares that in the aforementioned conditions, they shall have no claims over Codewise with regard to suspension of or blocking the services, accounts, domains or SSL certificates.
3.10. Client shall ensure that all their materials are free from viruses, worms, Trojan horses, and other malicious code.
- Intellectual Property
4.1. The Client shall not rent, lease, sublicense, distribute, transfer, copy, or modify Voluum.
4.2. The Client shall not adapt Voluum 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.
4.4. The Client shall not use Voluum 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.
- The End users’ data
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 Codewise’s Data Processing Agreement (the “DPA”). A current version of the DPA executed by Codewise is available on the Website, and became effective as of May 25, 2018. 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 any personally-identifiable information and the Personal Data included in the Data processed in connection with Voluum services, the Client shall be considered as the “Controller” or the “Processor” of the Personal Data and Codewise 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 Codewise is permitted to collect, use and transfer Data on behalf of the Client in order to provide Voluum services according to the terms defined under DPA.
- Service Standards
6.1. Codewise reserves the right to modify Voluum without notice and without liability.
6.2. Codewise has no obligation to review the Client’s use of Voluum. Codewise 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.
- Proprietary Rights
7.1. All 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 or features thereof (the: “Processed Data”) are and shall remain the sole and exclusive property of Codewise, including all applicable rights to 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 Codewise.
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.
8.1. Codewise 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/
9.1. The Client agrees that the platform, Voluum, and the Processed Data are Codewise’s confidential and/or trade secret information (collectively, the “Confidential Information”). 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 Codewise’s rights therein. The Client shall use its best efforts to assist Codewise 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 Codewise 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 Codewise, and the Client shall, at the Client’s expense, cooperate with Codewise in seeking injunctive or other equitable relief in the name of the Client or Codewise against any such person. The Client agrees to maintain the confidentiality of Codewise’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). The Client acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation Voluum or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, shall immediately give rise to continuing irreparable injury to Codewise inadequately compensable in damages at law, and Codewise 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, Codewise may immediately terminate the Client’s account and all license rights granted herein, in the event the Client breaches any of its confidentiality obligations.
10.1. The Client shall indemnify, defend, and hold harmless Codewise 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 Codewise, 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, 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. Codewise 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 Codewise rights without Codewise’s prior written consent. Codewise 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, Codewise 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.
- Disclaimer of Warranty
11.1. CODEWISE AND ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, 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, NONINFRINGEMENT 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, (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 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 CODEWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE VOLUUM PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED COMPENSATION IN THE AMOUNT OF FIFTY DOLLARS ($50.00), UNLESS OTHERWISE AGREED BY CODEWISE. ANY AMOUNTS INCLUDING THE COMPENSATION CANNOT BE DEDUCTED FROM THE INVOICE ISSUED BY CODEWISE, ALSO IN THE WAY THAT IT COULD LEAD TO THE ISSUANCE OF A CORRECTIVE INVOICE. 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.
12.1. This Terms and Conditions are effective as long as the Client is registered as a Voluum user. The services are provided by Codewise to Client on a month-to-month basis.
13.1. The Subscription (an access to the Voluum services) shall continue unless and until Codewise terminates it or the Client cancels it in the Voluum panel/Settings/Billing & Subscription tab or by contacting Codewise’s Customer Support Team. Regardless of the circumstances, such termination shall not give rise to Codewise’s liability.
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 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 Codewise, terminate and extinguish the Client’s right to use Voluum.
13.4. Codewise may suspend or terminate the Client’s access to Voluum at any time, without advance notice, for any reason that Codewise finds valid in its sole discretion, including but not limited to where Codewise believes that:
(A) the Client is in any way in breach of the Terms and Conditions;
(B) 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;
(C) the Client is late with any payment for the usage of Voluum for the period of 7 days from the date of payment;
(D) the Client’s overage charges (referred to in point 15.3. of this Terms and Conditions) have been exceeded by four times in relation to the pricing plan chosen by this Client.
14.1. Codewise is entitled to modify the Terms and Conditions or billing plans. Codewise will post notice of modifications hereto at the Website Changes will not apply retroactively and will become effective immediately after they are posted. Modifications to billing plans come into force at the beginning of the next billing period.
14.2. All amendments or modifications shall be binding if the Client continues to use Voluum after modifications to these Terms and Conditions came into force.
15.1. The Client must provide Codewise with a current, valid, accepted method of payment (the “Payment Method”) and billing details to use Voluum services, subject to provision of point 3.2.
15.2. Upon the registration and at the beginning of each Subscription Period 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 Subscription Period (the “Billing Cycle”) starts when the invoice is issued and lasts for the entire period purchased. The Client gains access to their account when the full amount of the Subscription Fee is credited to the Codewise’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 Codewise’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 and conversion, 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. If the total number of the Events exceeds the included limit specified in 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 individual basis Codewise 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 chosen. The cost associated with an overage 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, Codewise reserves the right to bill according to the chosen Payment Method and point 15.2 of these Terms and Conditions.
15.6. Annual (1 year) Subscription Period consists of 12 consecutive monthly Billing Cycles and is calculated as a price of the Subscription Fee for selected monthly plan and multiplied by 12. The Subscription Fee for annual and longer Subscription Periods is payable in advance for the entire Subscription Period. Overage charges applies also to annual plans and are settled according to point 15.3 above. On individual basis Codewise reserves the right to sign an additional agreement (the “Insertion Orders”), in particular with Clients who choose Subscription Period longer than 12 months and on individually priced plans. Codewise reserves also the right to apply discounts on any Clients’ Subscriptions or Subscription Fees.
15.7. Each Subscription consisting of annual or longer Subscription Period shall automatically renew for successive term corresponding to the duration of the Subscription Period (e.g. the Subscription with annual Subscription Period 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 Subscription Period. The Subscription Fee for any annual or longer Subscription Period, is non-refundable if the Client terminates this agreement later. The Subscription Fee paid already in advance for current Subscription Period is non-refundable as well if the Client terminates the Subscription earlier.
15.8. The chosen plan can be upgraded and the next Subscription Period begins on the moment of upgrade. The chosen plan can be downgraded at the end of the Subscription Period and it is not subject to refund.
15.9. The Client has to cancel the Subscription 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, Codewise may suspend or terminate the Client’s account and the Client shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Codewise 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. Codewise reserves the right to change its payment policies any time in its sole discretion.
15.13. As a rule, Codewise does not guarantee any refunds. In no case while using Voluum services, 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 Codewise, especially to refund of the Subscription Fee if the Client terminates the Subscription earlier than on the end of the Subscription Period.
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 Codewise. The Client shall reimburse Codewise for the amount of any such taxes or duties paid or accrued directly by Codewise as a result of this transaction.
16.2. All agreements between Codewise and the Client shall be governed by, and construed in accordance with, the laws of the State of Poland except for its conflict of law provisions, 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 Codewise and the Client), shall be brought and maintained exclusively in the court in Cracow competent for Codewise’s business seat. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the abovementioned 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 Codewise 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 Codewise. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms and Conditions.
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 Codewise or the Client.
16.8. The relationship of the Client and Codewise 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 this Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
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 Codewise 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 an written agreement signed between Codewise and the Client, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of the Voluum 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 Codewise prevails in any action, suit, or proceeding arising from or based upon these Terms and Conditions, Codewise shall be entitled to recover from the Client Codewise’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 these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail or postage prepaid to the address of the respective party as indicated herein. Copies of all notices shall be sent to Codewise sp.z o.o. sp. k., ul. Lubicz 17 G, 31-503 Cracow, Poland, Attn: Voluum Legal Department.
16.16. 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.
16.17. Any complaints that arise from this Terms and Conditions or use of the Voluum.com can be directed to firstname.lastname@example.org. All complaints will be handled within a reasonable timeframe, not exceeding 30 days.