Terms and conditions
Last Updated: 12.09.2019
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 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” and
The party submitting an application to become a Tornimo user,
further referred to as the: “Client”
further referred separately to as the: “Party” or jointly to as the ”Parties”
- These Terms apart being sent electronically on the Client’s email address indicated by them during registration process available on the Website are also presented on the following address https://tornimo.io/terms-and-conditions. The Client can read, download the Terms on their device as well as make a printout of these Terms.
- The Client shall read the Terms carefully before accepting them. If the Client does not agree to accept and be bound by the Terms, the Client shall not open an account or continue to use the Website. The Client’s continued use of the Website constitutes acceptance of the Terms.
- Codewise is constantly innovating Tornimo in order to provide the Client with the best possible experience and services. Therefore Codewise reserves the right to change these Terms and the form or nature of Tornimo services at any time at its sole discretion. If the Client has already an account in Tornimo, they will be informed about the substantive changes that can imply the Client’s rights through their panel in the account or on their email address at least 14 (fourteen) days before their implementation. Amendments to the Terms are also published on the Website by posting information about the change and the planned date of its entry into force. The Client is obliged to check their panel at such time and in a manner which allows them to read about the changes before they take effect. Continuation of using Tornimo services means the Client’s consent on aforementioned changes. If Client does not want to use Tornimo services with regard to new provisions, they are obliged to notify Codewise or delete their account before changes come into force.
- Changes mentioned in point 1.4. above, include without limitation changes to a fee and payment policies, security patches, added functionalities, and other enhancements.
- Codewise’s right to change the Terms according to point 1.4 and 1.5 above, does not apply to a Client who is a consumer, unless there is an important reason for such changes i.e.: in order to take into account changes in the law, changes of functions offered via the Website, introduction of new services on the Website, better protection of the Clients’ interests, and clarification of issues of concern. The Client being a consumer, who does not agree to the contents of the changes and the new wording of the Terms, is bound by the existing regulations or provisions that they accepted until the services or functionalities related to them expire (e.g. until the termination of the fixed-term contract) or will be terminated by the Client.
- Changing the form and nature of the Website, in particular changing the graphic design of the Website, adding new functionalities on the Website, etc., does not change the Terms unless such changes are inconsistent with the provisions of the Terms.
- Tornimo is a Graphite compatible monitoring service, built on Grafana – open platform for analytics and monitoring and hosted on Codewise’s servers. Graphite is a free open-source software (FOSS) tool that monitors and graphs numeric time-series data such as the performance of computer systems; it collects, stores, and displays time-series data in real time. Tornimo is made available to the Clients through the Website.
- ACCESS TO AND USE OF THE SERVICES
3.1. In order to start using Tornimo services the Client has to provide accurate and compete registration information and give their consent to the content of these Terms and to processing of their personal data with regard to providing Tornimo services by Codewise. The Client may provide Codewise with additional data of their or give their consent to use of their data in indicated purposes (i.a. to receive commercial information on provided email address).
3.2. Access to Tornimo requires logging in using Client’s email address and password.
3.3. If Codewise make such functionality available for the Client, the Client may create accounts assigned to the Client’s account to which other persons authorised by the Client may have access. The Client is solely responsible for operating assigned accounts by these person, especially for the consequences of any actions (including any loss or damage which Codewise may suffer) by creating, transmitting or displaying any content with the use of Tornimo services.
3.4. Codewise shall not access Clients’ accounts for purposes other than administrative or support.
- CLIENT REQUIREMENTS
4.1. The Client undertakes to provide their correct data and update it in case of any change. Providing correct data is necessary to verify and activate the Client’s account. Each Client can have only one account unless the Client have assigned accounts to their main account.
4.2. When an individual, the Client represents and warrants to be at least 18 years old and have full capacity to perform acts in law. The Client can be also a consumer i.e. a natural person who performs a legal transaction not related directly to their business or professional activity.
4.3. When a person signing to Tornimo 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.
4.4. The Client is responsible for the security of their passwords and for any use of the Client’s account. Taking into account the potential risks associated with creating an easy to guess password (or password used in other websites), Codewise encourages the creation of a strong password, not used in other websites. It is also recommended to use multi-factor authentication devices (MFA) if made available by Codewise. If the Client become aware of any unauthorized use of their password or of their account, the Client agrees to notify Codewise immediately.
4.5. The Client is solely responsible for their use of Tornimo. The Client shall not permit any third party to use or gain access to Tornimo and shall use reasonable security measures to protect against unauthorized usage or access. The Client is solely responsible for use of Tornimo by their employees or any unauthorized use of their password or of their account and the Client agrees to notify Codewise immediately about any suspicious event.
4.6. The Client shall ensure that all their materials are free from viruses, worms, Trojan horses, and other malicious code.
4.7. The Client shall not access, or attempt to access Tornimo by any means other than through the Website or interface provided by Codewise.
4.8. The Client shall not attempt to gain unauthorized access to accounts registered to other Clients, or any servers, systems or networks connected to Tornimo and the Webiste.
4.9. The Client’s use of Tornimo services must comply with all applicable laws, regulations and good practices, including any law regarding the export of data or software. The Client agrees not to use Tornimo in the design, development, production, stockpiling, or use of chemical or biological weapons, nuclear programs, missiles and maritime nuclear propulsion projects as well as 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 Tornimo services. The Client shall not use Tornimo and the Client’s account especially for: infringement of any rights, 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.
4.10. The Client shall not attempt to obstruct, disrupt or interfere with the operation of Tornimo 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 or binding law. Codewise reserves the right to determine what conduct it considers to be in violation of these Terms. Codewise reserves the right to control and verify compliance with these restrictions and limitations.
4.11. Client shall not obtain or attempt to obtain: (1) any information from Tornimo, including without limitation: email addresses of other Clients or other software data; (2) intercept, examine or otherwise observe any proprietary communications protocol used by Tornimo, Codewise’s websites or servers, (3) use any software that is designed to provide a means of unauthorized access to, or distort, delete, damage or disassemble Tornimo or Codewise’s websites or servers.
4.12. Codewise reserves the right to control and verify compliance with restrictions and limitations stated herein. Without prejudice to the other provisions of the Terms, the Client’s breach of aforementioned rules shall be treated as a material breach of the Tornimo’s Terms and entitles Codewise to immediately suspend the provision of services as well as block the Client’s account. 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 Tornimo services and the Client’s accounts. The Client is also obliged to immediately delete any content that infringes third party’s right or provisions of applicable laws, including pursuant to a delete request from Codewise. In the event that the Client does not comply with a request from Codewise to delete certain content, Codewise reserves also the right to directly delete such content.
- DATA PROTECTION
5.1. The Client who is not a consumer, operating on the European Union territory or the one processing personal data of persons who are citizens of a member state, represents that they have a legal basis to enter and process personal data with accordance to applicable laws regarding personal data in European Union.
5.2. For the purposes of these Terms, if and to the extent that Codewise processes any personal data on such Client’s behalf when performing the Client’s obligations, the Client shall be the data controller and Codewise shall be the data processor. The Client is also obliged to notify Codewise about entrusting Codewise with personal data and to accept the provisions of the Data Processing Agreement provided in the Client’s panel or in a different way by Codewise.
5.3. The Client agrees that they will protect the privacy and legal rights of the users of Client’s account or other accounts assigned to the Client’s account. The Client has to provide legally adequate privacy notice and protection for those users. If the users provide the Client with user names, passwords, or other login information or personal information, the Client has to make the users aware that the information will be available in the Client’s account or other accounts assigned to it and to Codewise.
- SERVICES STANDARDS
6.1. Codewise reserves the right to modify Tornimo without notice and without liability, subject to point 7.12 of these Terms only if this does not violate the consumer’s rights.
6.2. Codewise has no obligation to review the Client’s use of Tornimo. Codewise do not control, nor is to be held responsible for the Client’s use of Tornimo or any of the content that the Client sends or receive through Tornimo.
6.3. The Website or Tornimo services may include hyperlinks to other websites or content or resources or email content. Codewise may have no control over any websites or resources which are provided by companies or persons other than Codewise. You acknowledge and agree that Codewise is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources. You acknowledge and agree that Codewise is not liable for any loss or damage which may be incurred by the Client or other person as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.
6.4. For the obligations of the Client being a consumer resulting from the Terms as the agreement for the provision of Tornimo services, no minimum duration is specified.
7.1. The pricing is based on the Client’s amount of Events as definite in point 7.2. The price for one Event is indicated on the following page: https://tornimo.io/#pricing. The prices given are gross prices.
7.2. An Event is defined as a unit data transfer, any and or all of which will be totaled to calculate final costs.
7.3. The Client shall choose a payment method and enter their billing details before starting a paid subscription or any paid functionality on the Website before the subscription or functionality can be used.
7.4. If the Client chooses a free trial option, after the term of this trial, the Client can choose the paid subscription of the Tornimo services. The Client can also resign from a free trial earlier and choose paid subscription after such resignation. Each Client can use the free trial only once.
7.5. At the end of each billing period, the Client’s credit card shall be charged with a subscription fee corresponding to the amount of Events used by the Client.
7.6. First billing period begins on the date of starting paid subscription and ends on the last day of the month in which the paid subscription was started. Subsequent periods shall begin on the first day of each following month after the paid subscription was started and end on the last day of that month. The Client is always billed on the last day of the month if at least one Event was used.
7.7. At the end of each billing period as definite in point 7.6., the Client’s card will be charged for any charges accrued during a previous billing period. Charges are determined in accordance to the used Events.
7.8. 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 (maximum statutory interest for late payment).
7.9. All payments are in United States Dollars. Codewise may make other currencies available at any time at its sole discretion. The Client’s account shall be debited with corresponding fees in accordance with current rates.
7.10. The Client may activate paid functionalities of Tornimo. The Client is informed about all the costs of activating a given functionality of Tornimo before allowing them to place and order with the obligation to pay at the latest.
7.11. As a rule, Codewise does not guarantee any refunds unless the Client is a consumer.
7.12. Codewise may change the pricing of functionalities, make free functionalities paid or otherwise change its payment policies at any time during providing services and at its sole discretion but with previous notice to the Client in their panel or on their email address at least 14 (fourteen) days before their implementation. Amendments regarding pricing are also published on the Website by posting information about the change and the planned date of its entry into force. The Client is obliged to check their panel at such time and in a manner which allows them to read about the changes before they take effect. Continuation of using Tornimo services means the Client’s consent on aforementioned changes. If the Client does not want to use Tornimo services with regard to new provisions, they are obliged to stop using services before changes come into force. The Client being a consumer, who does not agree to the pricing changes, is bound by the existing regulations or provisions that they accepted until the services or functionalities related to them expire (e.g. until the termination of the fixed-term contract) or will be terminated by the Client.
7.13. 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.
7.14. 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.
- CONDITIONS OF WITHDRAWAL FROM THE AGREEMENT BY THE CONSUMER
8.1. The Client who is a consumer has the right to withdraw from the agreement without giving a reason within 14 (fourteen) days from the date of choosing paid subscription or functionality. To comply with the deadline, it is sufficient to send declaration of withdrawal before that date. The statement can be submitted, especially on the model withdrawal form, being an annex to these Terms. The use of this form is optional. Codewise reminds that in some situations defined by generally applicable law, no right to withdrawal is available to the consumer.
8.2. In case of withdrawal from the agreement, the Client being the consumer is reimbursed all payments received from them, immediately, and in any case not later than 14 (fourteen) days from the date on which Codewise was notified of exercise of the right to withdraw from the agreement. The payment is returned using the same method of payment, unless the Client who is a consumer has agreed to a different method of return, which does not involve any costs for them.
8.3. In the event of withdrawal from the agreement, the Client is released from all obligations, subject to the exceptions provided for by the generally applicable laws.
8.4. If the Client who is a consumer agrees to start fulfilling the service before the deadline to withdraw from the agreement, the Client has the option to start using the Tornimo services within 14 (fourteen) days from the date of its availability, but then loses the right to withdraw from the agreement (about what the Client is informed before consenting to fulfillment of the chosen Tornimo services before the deadline to withdraw from the agreement).
9.1. 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 and refers to the working days Monday through Friday, from 9:00 to 17:00, Eastern European Time. Technical support may be available at the following e-mail address: firstname.lastname@example.org.
10.1. In the scope of complaints, the Client who is a consumer may exercise the rights granted by the provisions of the Civil Code and the Act of 30 May 2014 on consumer rights or other acts applicable to such Client, including under the warranty if the provided service has a physical or legal defect.
10.2. The right to submit a complaint referred to in this point is entitled to the Client only and exclusively within the scope of Tornimo services, for which the Codewise is solely responsible, to the following email address: email@example.com.
10.3. The Client has the right to notify Codewise of any irregularities, faults or interruptions in the functioning of the Website and about the inappropriate (according to the Client’s opinion) quality of Tornimo services – both disclosed during the use of the Website.
10.4. The Client has the right to file a complaint within 1 (one) month from the date on which the irregularity in the functioning of the Website occurred. Complaints submitted after the deadline specified in the first sentence shall be left without consideration, of which Codewise shall promptly notify the Client.
10.5. The complaint will be reviewed by Codewise within 30 (thirty) days of the effective submission date.
10.6. The date of filing the complaint is the date of the complaint receipt by Codewise.
10.7. In the complaint, the Client should provide their e-mail address as assigned to the Client’s account as well as a type a date of occurrence of irregularities related to the functioning of the Website.
10.8. At any time during the complaint procedure before Codewise, the Client may request that the matter being the subject of the complaint procedure be resolved by the third party and for this purpose:
(A) apply to the mediator or institution before which mediation proceedings will be initiated with a request for mediation,
(B) apply to an institution before which arbitration proceedings will be pending with a petition for review of the case by an arbitration court,
(C) if it is a consumer, ask the relevant Consumer Ombudsman for help.
10.9. In order to remove any doubts, the instruction referred to in this point, does not constitute an arbitration clause or Codewise’s automatic consent to participate in the mediation or amicable proceedings.
10.10.The right to the warranty is excluded for the Client submitting orders as an entrepreneur.
- INTELLECTUAL PROPERTY RIGHTS
11.1. Codewise grants to the Client non-exclusive, non-assignable and non-transferable license during the Term (as defined in point 13) to use Tornimo software in accordance with the Terms set herein.
11.2. Client shall not rent, lease, sublicense, distribute, transfer, copy, or modify Tornimo.
11.3. Client shall not adapt Tornimo in any way or use it to create a derivative work.
11.4. Client shall not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code of Tornimo.
11.5. All algorithms, methods of computation and data processed by Codewise to provide Tornimo services and any other data of statistical nature necessary for proper functioning of Tornimo or features thereof 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 (hereinafter referred to as: “Processed Data”). All rights not expressly granted to the Client herein are reserved to Codewise.
11.6. Open source software licenses for components of the Tornimo released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Codewise for the use of the components of the Tornimo released under an open source license.
11.7. The rights to the logotype and the Website’s name are vested in Codewise and are protected by law. Using them for any purpose without prior consent of Codewise (except when the Client is entitled to use them under the law) is prohibited. The Client also undertakes not to reproduce, copy or use information, data or other elements of the Website, of which the owner or licensee is Codewise.
11.8. The Client’s materials and data entered into Tornimo 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. By submitting, posting or displaying the content on or through Tornimo, the Client gives Codewise non-exclusive, non-assignable and non-transferable license during the Term (as defined in point 13) to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such content for the sole purpose of enabling Codewise to provide the Client with Tornimo services in accordance with these Terms.
11.9. The Client also agrees that Codewise at its sole discretion, may use the Client’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to the Client’s website) for the purpose of advertising or publicizing the Client’s use of the Tornimo services.
12.1. The Client agrees that the platform, Tornimo, 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. 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.
12.2. Without limitation of the provisions of point 12.1, the Client shall advise Codewise immediately in the event the 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 proprietary rights of Codewise, and the Client will, 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. 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).
12.3. The Client acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation Tornimo 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 the Client’s account and all license rights granted herein, in the event the Client breaches any of its confidentiality obligations.
- TERM & TERMINATION
13.1. This Terms are effective as long as the Client has an account on the Website. Deleting the Client’s account means deleting all accounts assigned to it. At any time deleting an account is only possible if the Client has no outstanding dues against Codewise. The services are provided by Codewise to Client on a month-to-month basis. The Client shall notify Codewise to delete their account or the Client may delete the account by themselves if such an option is made available by Codewise.
13.2. Either Party, may terminate this agreement at any time by providing a notice to the other Party. Regardless of the circumstances, such termination shall not give rise to liability.
13.3. In the event of any termination, the Client will not be entitled to any refunds of any fees. Any outstanding balance for Tornimo 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 the Client’s account will be no longer available to the Client. The termination of this agreement shall automatically, and without further action by Codewise, terminate and extinguish Client’s right to use Tornimo.
13.4. Codewise may suspend or terminate the Client’s access to Tornimo at any time, without advance notice, for any reason that Codewise finds valid at its sole discretion, including but not limited to where Codewise believes that:
(A) the Client is in any way in breach of the Terms;
(B) the Client, at any time, is conducting activities that do not fully comply with all applicable laws, rules and regulations,
(C) the Client is late with any payment for the usage of Tornimo for the period 7 (seven) days from date of payment.
13.5. The Client is solely responsible for exporting their content from Tornimo prior to termination of their account for any reason, provided that if Codewise terminates the Client account, Codewise will make reasonable efforts to permit the Client to retrieve the Client’s content for a reasonable period of time but no longer that 14 (fourteen) days form termination of Tornimo services.
13.6. Upon deleting of the Client’s account, these Terms will also terminate, but Sections 11 – 18 shall continue to be effective after these Terms are terminated.
13.7. Codewise’s termination of Terms shall be subject to provisions regarding consumer’s rights if the Client is a consumer. Therefore if the Client is a consumer, Codewise may terminate the agreement concluded for an indefinite period only along with indicating the important reasons stated in point 13.4 above and with 14 (fourteen) days’ notice.
14.1. The Client agree to indemnify, defend and hold harmless Codewise and its directors, officers, employees, agents, and affiliates from and against any and all liabilities, claims, demands, damages, losses, costs, and expenses, recoveries, settlements including attorneys’ fees, accounting fee, expert witness fees, interests, penalties, incurred by Codewise, known or unknown, contingent or otherwise, directly or indirectly arising out of or related to:
(A) any misrepresentation or omission of material fact by the Client to Codewise, irrespective of whether such misrepresentation or omission was intentional,
(B) the Client’s violation of these Terms,
(C) any compromise or unauthorized use of Tornimo services.
14.2. If applicable law prohibits a Party from providing indemnification for another Party’s negligence or acts, such restriction, or any other restriction required by law for this indemnification provision to be enforceable, shall be deemed to be part of this indemnification provision.
14.3. 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 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 the Client’s expense, including, without limitation, settling such claim, after giving notice of the same to Client.
- DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
15.1. CODEWISE AND ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, USERS AND AGENTS (COLLECTIVELY “THE TORNIMO PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING CLIENTS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE TORNIMO 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 TORNIMO REMAINS WITH THE CLIENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE TORNIMO PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING:
(A) MEETING THE CLIENT’S REQUIREMENTS WHILE USING TORNIMO SERVICES,
(B) TIMELY, THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF TORNIMO AND
(C) ACCURATE USAGE DATA PROVIDED THROUGH TORNIMO SERVICES.
THE TORNIMO SERVICES ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY THE CLIENT SHALL BE AT THE CLIENT’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TORNIMO 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 AS WELL AS ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR ANY RELATED DOCUMENT OR THE USE OF OR INABILITY TO USE TORNIMO, EVEN IF CODEWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE TORNIMO PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED FIFTY DOLLARS ($50.00).
THE CLIENT ALSO AGREES THAT TORNIMO PARTIES HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE TORNIMO SERVICES. THE CLIENT FURTHER ACKNOWLEDGE THAT THE CLIENT IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP THEIR CONTENT.
THE PARTIES AGREE THAT THIS DISCLAIMER IS INTENDED TO BE CONSTRUED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, ESPECIALLY THE CONSUMER’S RIGHTS. THE LIMITATIONS ON CODEWISE’S LIABILITY TO THE CLIENT SHALL APPLY WHETHER OR NOT CODEWISE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
WITH REGARD TO THE CLIENT BEING A CONSUMER THE AFOREMENTIONED PROVISIONS STATING THE LIMITATION OF LIABILITY OF CODEWISE DO NOT APPLY AND CODEWISE IS FULLY LIABLE FOR PROVIDING TORNIMO SERVICES ACCORDING TO POLISH CIVIL CODE.
16.1. If any provision of these Terms is found to be invalid, unenforceable, or contrary to law, then the Terms will be deemed amended by modifying such provision to the extent necessary to make them valid and enforceable while preserving its intent or, if that is not possible, by striking the provision and enforcing the remainder of these Terms.
- LAW AND JURISDICTION
17.1. 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.
17.2. Any litigation based hereon, or arising out of, under, or in connection with these Terms (and all agreements between Codewise and the 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.
17.3. 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 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.
17.4. Abovementioned provisions does not apply to the Client who is a consumer.
17.5. The Client who is a consumer has the right to use extrajudicial methods of dealing with disputes and pursuing claims. The rules of using these procedures are available at the offices and on the websites of the relevant Consumer Ombudsmen, social organizations, whose statutory tasks include consumer protection, Provincial Inspectorates of Trade Inspection and the Office of Competition and Consumer Protection. The consumer has the right to apply to a permanent amicable consumer court operating at the Trade Inspection (in the event of a dispute arising from the agreement), to the provincial inspector of Trade Inspection with a request to initiate mediation proceedings, to the Consumer Ombudsman or a social organization to which statutory protection is to protect consumers or take advantage of the EU Online Disputes Resolution (ODR) platform available at https://ec.europa.eu/consumers/odr/.
- GENERAL PROVISIONS
18.1. The Client, who is not a consumer, 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.
18.3. In the event of inconsistency between the provisions of the Terms and the provisions of any additional regulations for the use of particular services of the Website, the provisions of these regulations shall prevail.
18.4. These Terms are made solely for the benefit of the Client and Codewise and their respective successors, assigns, heirs, executors and administrators and no other person or entity shall have or acquire any right by virtue of these Terms.
18.5. The Client may not assign any of its rights or delegate any of its duties under these Terms 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.
18.6. Codewise may assign any of its rights or delegate any of its duties under these Terms without the prior written consent of the Client unless the Client is a consumer.
18.7. The relationship of the Client and Codewise established by these Terms is that of independent contractors, and neither Party is an employee, agent, partner or joint venturer of the other.
18.8. Neither Party shall be deemed in default of this Terms 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 such as: 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.
18.9. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms 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.
18.10.Except as may be set forth in an written agreement signed between Codewise and the Client, these Terms constitute the final, complete, and exclusive statement of the terms of the use of the Tornimo between the Parties and supersedes all prior and contemporaneous understandings or agreements of the Parties.
18.11.If Codewise prevails in any action, suit, or proceeding arising from or based upon these Terms, 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.
18.12.The headings in these Terms are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms nor affect any of the rights or obligations of the Parties.
18.13.Any notice, communication or statement relating to these Terms shall be in writing and deemed effective:
(A) upon delivery when delivered in person;
(B) upon transmission when delivered by verified facsimile or other confirmed electronic transmission;
(C) 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. (Tornimo), ul. Lubicz 17 G, 31-503 Cracow, Poland, Attn: Legal Department.
18.14.Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel (unless the Client is a consumer) and has read and understood all of the terms and conditions of these Terms. These Terms shall not be construed against either Party by reason of its drafting.
18.15.The provisions of the Terms do not violate the consumer’s rights resulting from the applicable provisions of law, which are applied in the first place before the provisions of the Terms.
Annex No. 1 to the Terms and Conditions – a model form of withdrawal from the agreement
………………, ………………. (place and date)
…………………………. (name and surname)
………………………….. (e-mail address)
Codewise Sp. z o.o. sp. k.
ul. Lubicz 17G
DECLARATION OF WITHDRAWAL FROM THE AGREEMENT
I, …………………………….. (name and surname) inform you about my withdrawal from the agreement with Codewise Sp. z o.o. sp. k. consisting of ……………………………………………………………………………………………..… .
The number of the bank account to which the payment should be refunded:
Signature of the Client (only if the form is sent in a paper version)