Last Updated: 28th August, 2014
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 registered in the entrepreneurs 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 the number: KRS 0000402705, Codewise EU VAT ID: PL5213623147, further referred to as: “Codewise”
The party submitting an application to become a Voluum user,
further referred to as: “Client”
These Terms and Conditions govern Client’s participation in and/or use of certain services or features of Voluum, a web application owned and operated by Codewise. By registering as a Voluum user or by using Voluum, Client agrees to be bound by these terms of service (hereinafter referred to as: “Terms and Conditions”). This Terms and Conditions are effective as of the date Client registers as a Voluum user.
Voluum is a proprietary web application for measuring web traffic and reporting, which is hosted on Codewise’s servers and made available to Clients through the website: voluum.wpengine.com. To use Voluum an internet connection and a web browser with Java support is required.
2.1 Codewise grants to Client a non-exclusive, non-assignable, and non-transferable right during the Term (as defined in section 11) to use Voluum in accordance with all of the terms and conditions set forth herein.
2.2 Access to Voluum requires logging in using Client’s e-mail address and password.
2.3 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. Client is solely responsible for use of Voluum by their employees or any unauthorized person.
2.4 Codewise shall not access Clients’ accounts for purposes other than administrative or support.
3. Client requirements
3.1 Client shall provide true, accurate and current information to Codewise and shall maintain all account information, insuring it is true, accurate and up-to-date.
3.2 When an individual, 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. Client is not a consumer).
3.3 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 this Terms and Conditions.
3.4 Client (when an individual) or the person acting on behalf of Client authorizes Codewise to process their personal data given during registration for the needs of executing this agreement and rendering the services of Voluum (including referral program) in accordance with the Personal Data Protection Act dated 29.08.1997 (uniform text: Journal of Laws of the Republic of Poland 2002 No 101, item 926 with further amendments).
3.4 Codewise is the controller of personal data. The Client (when an individual) or person acting on behalf of Client have the right to access their personal data processed by Codewise and to request the data to be corrected or deleted.
3.5 Clients shall not access, or attempt to access, Voluum by any means other than through the website or interface provided by Codewise.
3.6 Client shall not attempt to obstruct, disrupt or interfere with the operation of Voluum or other services provided by Codewise.
3.7 Client shall not attempt to gain unauthorized access to accounts registered to other users, or any servers, systems or networks connected to Voluum or Codewise’s website.
3.8 Client shall not obtain or attempt to obtain: (A) any information from the Voluum, including without limitation: email addresses or phone numbers of other account holders or other software data; (B) intercept, examine or otherwise observe any proprietary communications protocol used by Voluum, Codewise’s website or servers, (C) use any software that is designed to provide a means of unauthorized access to, or distort, delete, damage or disassemble Voluum or Codewise’s website or servers.
3.9 Client shall not use Voluum for any illegal, obscene, offensive or immoral purpose.
3.10 Client shall ensure that all their materials are free from viruses, worms, Trojan horses, and other malicious code.
4. Intellectual Property
4.1 Client shall not rent, lease, sublicense, distribute, transfer, copy, or modify Voluum.
4.2 Client shall not adapt Voluum in any way or use it to create a derivative work.
4.3 Client shall not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code of Voluum.
4.4 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.
5. Service Standards
5.1 Codewise reserves the right to modify Voluum without notice and without liability.
5.2 Codewise has no obligation to review the Client’s use of Voluum. Codewise do not control, nor is to be held responsible for Client’s use of Voluum or any of the content that Client sends or receive through Voluum.
6. Proprietary Rights
6.1 All algorithms, methods of computation and data processed by Voluum to measure network traffic, Events (as defined in section 14.2), used for geolocation or categorization of network traffic or any other data of statistical nature necessary for proper functioning of Voluum or features thereof (hereinafter referred to as: “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 Client herein are reserved to Codewise.
6.2 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.
7.1 Codewise shall not be obligated to provide 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 Client, and refers to the working days Monday through Friday, from 9:00 to 17:00, Eastern European Time. Detailed information on technical support are posted on Voluum website: http://feedback.voluum.wpengine.com/
8.1 You agree that the platform, Voluum, and Processed Data are Codewise’s confidential and/or trade secret information (collectively, “Confidential Information”). 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. Client agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Codewise’s rights therein. 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, Client shall advise Codewise immediately in the event Client learns or has reason to believe that any person to whom Client has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of Codewise, and Client will, at Client’s expense, cooperate with Codewise in seeking injunctive or other equitable relief in the name of Client or Codewise against any such person. Client agrees to maintain the confidentiality of Codewise’s Confidential Information using at least as great a degree of care as Client uses to maintain the confidentiality of Client’s own most confidential information (and in no event less than a reasonable degree of care). 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, will 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 Client’s account and all license rights granted herein, in the event Client breaches any of its confidentiality obligations.
9.1 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 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 Client’s website is owned by someone other than Client or that the website infringes on the intellectual property rights of a third party. Codewise shall notify Client of any such claim and shall cooperate with Client, at Client’s expense, in defending or settling such claim. User may 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 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 Client’s expense, including, without limitation, settling such claim, after giving notice of the same to Client.
10. Disclaimer of Warranty
10.1 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 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 USER WEBSITES REMAINS WITH USER. 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 YOU SHALL BE AT YOUR 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, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE 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 FIFTY DOLLARS ($50.00).
11.1 This Terms and Conditions are effective as long as Client is registered as a Voluum user. The services are provided by Codewise to Client on a month-to month basis.
12.1 Either Party may terminate this agreement at any time by providing notice to the other Party. Regardless of the circumstances, such termination shall not give rise to liability.
12.2 In the event of any termination Client will not be entitled to any refunds of any fees. Any outstanding balance for Voluum use rendered through the date of termination, and other unpaid payment obligations during the remainder of the billing period will be immediately due and payable in full. All data, files or other information stored in Client’s account will be no longer available to Client.
12.3 The termination of this agreement shall automatically, and without further action by Codewise, terminate and extinguish Client’s right to use Voluum.
12.4 Client agrees that Codewise has the right to delete all data, files, or other information that is stored in Client’s account subsequent to termination. Client agrees that Codewise may retain chosen Processed Data related to Client’s use of Voluum, except for any personal data. Such data shall be used only to improve Voluum performance and quality of service.
12.5 Codewise may suspend or terminate Client’s access to Voluum at any time, without advance notice, for any reason that Codewise finds valid in its sole discretion until cured, including but not limited to where Codewise believes that: (A) Client is in any way in breach of the Terms and Conditions; (B) 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) Client is late with any payment for the usage of Voluum for the period 7 days from date of payment.
13.1 Codewise may modify Terms and Conditions or billing plans. Codewise will post notice of modifications hereto at voluum.wpengine.com. 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 next billing period.
13.2 All amendments or modifications will be binding if Client continues to use Voluum after modifications to these Terms and Conditions came into force.
14.1 Pricing is based on Client’s chosen plan, and reflects the offering shown on the pricing page: https://voluum.wpengine.com/#pricing
14.2 All plans adhere to the usage structure which is defined as an “Event”’ An Event is defined as a visit, click and conversion, any and or all of which will be totaled to calculate final costs.
14.3 In case of Noobie plan Voluum shall not take into account and measure any Events exceeding the limit specified in the offer.
14.4 Clients shall be prompted to enter credit card information upon the registration of their account, before the account can be used (except for Clients choosing Noobie plan).
14.5 Upon the registration and at the beginning of each billing period (except Noobie plan) Client’s credit card shall be charged with a subscription fee corresponding to Client’s chosen plan.
14.6 First billing period begins on the date of registration as a Voluum user and ends the day before the date of following month that corresponds to the date of registration. Subsequent periods shall begin on the date of each month that corresponds to the date of registration and end the day before that date in following month. For applications submitted on: 1st January, 1st April, 1st July or 1st October the billing period shall begin the next day after the registration.
14.7 At the beginning of each billing period Client’s card will be charged for any overage charges accrued during last billing period. Overage charges are determined in accordance to the plan chosen. The cost associated with overage use is defined via the Voluum pricing page https://voluum.wpengine.com/#pricing
14.8 If the payment cannot be charged to Client’s credit card, Codewise may suspend or terminate Client’s account and 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.
14.9 All payments are in United States Dollars. Client’s account shall be debited with corresponding fees in accordance with current rates.
14.10 Codewise reserves the right to change its payment policies any time in its sole discretion.
14.11 Codewise does not guarantee any refunds, and will only handle refunds on a case by case basis.
15.1 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. 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.
15.2 All agreements between Codewise and 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 of Service.
15.3 Any litigation based hereon, or arising out of, under, or in connection with these Terms of Service (and all agreements between Codewise and Client), shall be brought and maintained exclusively in the competent court in Cracow . 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.
15.4 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.
15.5 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.
15.6 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 its obligations or alter any of its primary obligations to be performed under these Terms and Conditions.
15.7 Except as otherwise expressly provided in these Terms of Service, these Terms of Service shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of Codewise or Client.
15.8 The relationship of Client and Codewise established by these Terms and Conditions is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
15.9 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.
15.10 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.
15.11 Except as may be set forth in an written agreement signed between Codewise and 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.
15.12 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.
15.13 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 Client Codewise’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.
15.14 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 these Terms and Conditions.
15.15 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 Voluum.com, ul. Lubicz 17 G, 31-503 Cracow , Poland, Attn: Legal Department.
15.16 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.
15.17 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.