PLEND USER LICENCE AGREEMENT
1. General provisions:
1. This document (‘Terms and conditions’, ‘License’ or ‘Agreement’) specifies the terms and conditions of legally binding agreement in relation to using the Software. It is concluded between Wiperapp EP limited liability company, established at ul. Kominiarska 42B, 51-180 Wroclaw, (Poland) registered with Nation Court Register under number 0000649217, company register number (REGON): 365941748, vat identification number: 895-210-67-73, (hereinafter referred to as: „Wiperapp” or „Company”) and a buyer of the license for using the Software, or a third party acting on behalf of the buyer, provided that purchasing the license he acts on the behalf the aforementioned party. The license specifies the terms and conditions of using the Software by the party using it (‘hereinafter referred to as ‘User’ while rights and obligations of the User specified in this agreement are at the same time the rights and obligations of the party who purchases the license and provides the User with The Software.
2. Wiperapp in reference to these Terms and Conditions means also any other person or party, in a business relationship with Wiperapp, being in a relationship of dependency or connection, to include the party directly or indirectly under control of Wiperapp or the persons specified above, who were designated by Wiperapp by another agreement to perform any part of these Terms and Conditions.
3. This agreement is contracted at the address where Wiperapp is registered or at the address of the license purchase, as it is stated on the purchase order.
4. The subject of the license is specifying the terms and conditions and granting the non-exclusive, non-transferable Software Use License, limited to use exclusively for the purpose of access and use in compliance with this Agreement.
5. ‘Software’ means any Wiperapp software for safe data erasing from hard disks, with a functionality enabling irreversible data erasing, in form of source code, licensed by Wiperapp to include any modifications, updates, versions, document files attached to the Software, as specified in the purchase order.
6. The Software may contain freely available and distributable, or open source software and other copyrighted material by third parties („Third Party Software”). The Third Party Software shall be governed by their respective license terms and conditions instead of the above license terms which are applicable to the Software. Wiperapp shall have no warranty or indemnification obligations with respect to any Third Party Software. Your warranty and indemnification rights, if any, with respect to Third Party Software, shall be according to such third party’s applicable terms and conditions.
7. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
8. IF YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE, AND RETURN THE SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED.
9. User is bond by the Terms and Conditions and any of their modifications which may be introduced by Wiperapp at any time.
10. Wiperapp may amend these Terms and Conditions, with or without issuing updated Software version, notifying the User by placing update notification on their own www page or by sending email including the updates.
11. The User agrees and declares that any use of the Software by hi, during and after thirty (30) days after placing such a notification of changing Terms and Conditions by Wiperapp on their www page or after receiving an email notifying about such a change means the User accepts the new or amended Terms and Conditions. In case of lack of consent of the User for change in Terms and Conditions, the User should notify Wiperapp about lack of such consent.
12. Shall the User’s object the new Terms and Conditions, the agreement is cancelled on their effective date in the extent the change disables further using the Software on Terms and Conditions, effective on the date he purchased the License.
13. In any time the User may be informed about new updates or new versions of the Software. Downloading by the User updated or new versions of the Software and/ or further use of the Software means accepting these Terms and Conditions and the use is in compliance with rules specified in these Terms and Conditions. If the User does not agree to comply with these Terms and Conditions he is not permitted to use the new versions and updates of the Software.
2. INTELECTUAL PROPERTY RIGHTS AND EXTENT OF THE LICENCE.
1. The Software is exclusive property of Wiperapp and as such, along with accompanying documentation and any intellectual property rights, patent rights, trademarks, data bases, commercially sensitive information and other intellectual and trade property rights is protected by Polish Law and by international legislation law to include international conventions and local law of the convention parties.
2. „Wiperapp” is a registered trademark Wiperapp EP limited liability and/ or its related/ dependent Affiliates. Other Wiperapp related logos, product names, and service names are also trademarks of Wiperapp limited liability and/or its Affiliates.
3. The User acknowledges that Wiperapp is exclusive owner of non-limited by time or territory; any Polish, European or foreign intellectual and trade rights for the Software (and any related services) to include intellectual property rights, patents, trademarks, commercially sensitive information, the rights relating to data bases, and has a full right to transfer these rights to third parties and the User has no other rights towards the Software other that using it in compliance with Terms and Conditions of this License ( and/ or related license of third parties).
4. Under the terms and conditions of this Agreement, Wiperapp hereby grants to the User a non-exclusive, non-transferable right to use the Software (for the purpose of this Agreement, use of the Software means to access, install, download, use or otherwise benefit from using the Software during the license term according to the license type agreed in the purchase order) solely for User’s own internal operations.
5. The User agrees not convey, resale, transfer or share the license, as a whole or any part of it, with third parties unless he is an authorized partner of Wiperapp (in relation to partners it is possible under agreement concluded between Wiperapp and a Representative (‘partnership agreement’ within the extent specified in such this agreement)) and agrees not to allow the third parties’ unauthorized access to the Software.
3. USER’S RIGHTS AND OBLIGATIONS.
1. While using the Software the User agrees to comply with the law, including both local and international legislation concerning- among others, but not only- intellectual and trade property law, commercially sensitive information, moral standards, security standards, property protection- including data protection. The User indemnifies and saves Wiperapp harmless from and against any claims in relation to any such non-compliant with the Law action of the User.
2. Despite Wiperapp is not obliged to monitor the way of using the Software by the User, Wiperapp retains the right to monitor the Use of Software in the extent necessary to reveal and report to the designed authority the information needed to ensure compliance with legislation in force. Shall the Software use in contra version with the Law in force be reported to Wiperapp, Wiperapp is entitled to ban, reject, remove as a whole or any part of results (including information or materials) such infringement of the Law in force.
3. The User should immediately report to Wiperapp any infringement of the Software security or the Software use security mechanisms.
4. Particularly when using the Software, or any part of it, the User should:
a) make sure that the Software is installed only on the devices meant for that and that it does not threaten the security of the data stored on the other devices,
b) keep a complete and accurate record of the use of the Software and produce such record to Wiperapp on request- from time to time,
c) inform Wiperapp immediately after noticing unauthorized use by any person,
d) facilitate Wiperapp to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and to have access to any records kept in connection with this license, for the purposes of ensuring that the User is complying with the terms of this license. Wiperapp will provide reasonable advance notice of the planned inspection, which should take place at reasonable times. The audit rights specified herein shall also extend to the Affiliates of the user, if applicable,
e) process the data using the Software in compliance with applicable Law, particularly the Law referring to data protection. Regarding the Software use, Wiperapp does not become any stage of agreement a personal data administrator, neither obtains any authorization for that data processing.
5. The User is forbidden to- without a prior, written permission-:
a) transfer, resale, lend, copy or distribute in any other form the Software and the accompanying documents,
b) make any changes, modify, decompile, reverse assemble, reverse engineer, translate or disassemble for any reason or purpose or any other form of interference in the Software,
c) make derivative works based on, any part of the Software and the accompanying documents;
d) translate or modify to the User’s manual,
e) remove or cover trademarks and the information concerning intellectual property rights consisted in the Software, its copies and the accompanying documents,
f) reverse engineer / (make attempt to discover the Software source codes),
g) send e-mails lawlessly (spam) containing a link to the Software (button or monitoring tag) a link to Wiperapp page or the link to the page containing the Software description or transferring to Wiperapp page.
6. By purchasing the License for the Software use, the User commits to pay the license fee according to the fee list referred to in the order / being appendix of this agreement, in advance, by 10th day of each month, basing on the received invoice. The invoice copy is a proof of the License agreement and must be kept by the User.
7. The User warrants and is liable for the accuracy of any data, information, records, submissions, documents provided by himself or by any persons authorized by him, to Wiperapp. The User warrants that any data, information, submissions, and records provided to Wiperapp are to his knowledge accurate and contain no known or suspected material inaccuracy, distortion, or manipulation. The User warrants, and is responsible for obtaining and maintaining, the legal right to provide Wiperapp with such data, records, information, submissions, documents, including data, records, information, submissions, documents that are subject to an interest of a third party. The User declares that he is authorized to provide Wiperapp with such data, records, information, submissions, documents and it is not in contradiction to his other obligations. The user is liable for accurate update in such data, records, information, submissions, documents. Wiperapp will not reveal neither share any information enabling User’s identification. Wiperapp may ( but is not obliged to) audit any data, records, information, submissions, documents, and may use and publish such data, records, information, submissions, documents only in form of collective/ anonymous data, providing it does not contain or reveal any data or identity of the User.
8. The User has a full and unlimited liability for the security of data exposed to the Software or processed with the use of Software, to include the data enabling logging into Software use, the Software users logins and/ or passwords.
4.WIPERAPP WARRANTIES.
1. WIPERAPP WARRANTS FOR A PERIOD OF NINETY (90) DAYS FROM DELIVERY, THAT EACH UNMODIFIED COPY OF THE SOFTWARE WILL PERFORM IN ALL MATERIAL RESPECTS, IN ACCORDANCE WITH THE ACCOMPANIED DOCUMMENTATION. THE WARRANTY ABOVE IS UNIQUE AND IT REPLACES ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. NO OTHER ADVICE OR INFORMATION, WRITTEN OR SPOKEN, OBTAINED BY THE USER FROM WIPPERAPP, WILL NOT FORM ANY WARRANTIES BUT THE ONE EXPRESSED HERE IN PRAGRAPH 1. ANY SOFTWARE UPDATES PROVIDED BY WIPERAPP ARE COVERED BY THIS WARRANTY FOR THE PERIOD REMAINING TO THE WARRANTY EXPIRY OR FOR 30 DAYS FROM THE DATE OF DELIVERY, DEPENDING WHICH PERIOD IS LONGER.
2. As for Warranty mentioned in par. 1 Wiperapp is liable to remove faults within 14 days from the fault being reported.
3. WIPERAPP DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE DEPENDABLE, UNINTERRUPTED AND FAILURE FREE. THE SOFTWARE IS PROVIDED ‘AS IS’ (AS IS, AS AVAILABLE) WITH ANY WARRANTIES OTHER THEN ABOVE MENTIONED IN PARAGRAPH 1, AS WELL EXPRESSED AS IMPLIED, INCLUDING THE ONES REGARDING AVAILABILTY, ACCURACY, USEFULLNESS, COMPATIBILITY OR CONTENTS OF THE SOFTWARE OR SERVICE, OR USEFULLNESS IN COMERCIAL PROCESSES OR FITNESS FOR PARTICULAR PURPOSES. The Software and Wiperapp authors put every effort for the Software to be failure free, according to the assumptions taken, however, the current technology does not allow guaranteeing the absolute inerrancy of the Software, neither that it will meet requirements and goals of the User, nor that it will comply with other software arbitrary chosen by the User; The User holds full responsibility for the choice of the Software, these choice should be preceded by evaluation of all the User’s needs, User’s expectations towards the Software, its fitness for goals specified by the User. User holds full responsibility for the results of choice and the outcome of using the Software, as well as for the results achieved while running the Software.
4. THIRD PARTY SOFTWARE IS PROVIDED WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER UNLESS OTHERWISE SPECIFIED IN THE RESPECTIVE THIRD PARTY SOFTWARE LICENSE TERMS AND CONDITIONS. WIPERAPP ABSOLUTELY DOES NOT GIVE ANY WARRANTY AND DOES NOT HOLD ANY RESPONSIBILITY FOR THIRD PARTYY SOFTWARE MALFUNCTION.
5. MODIFICATIONS. TECHNICAL SUPPORT AND TRAINING.
1. The User acknowledges, that Software documentation will be provided in English, unless otherwise stated in local legislation.
2. Wiperapp policy for providing support in relation to the Software shall be available at www.wiperapp.com or at other www address, which the User will be provided with. As part of the Software, Wiperapp will provide the Customer with its standard customer support services during the normal business hours, in accordance with Wiperapp Support Services Policy in effect at the time of the services, at no additional cost to the Customer.
3. Wiperapp may amend the Support Services Policy in their sole and absolute discretion from time to time. The User may purchase enhanced support services separately at Wiperapp’s then current rates and applicable terms.
4. Wiperapp shall have the right to update, to provide new functionality or otherwise change the design of any Software or to discontinue the manufacture or sale of any Software in its absolute discretion without any liability to the User.
5. If updates or new versions of the Software were designed and released, the User may download them on Wiperapp site. These terms and Conditions cover also the new or updated version of the Software, downloaded by the User.
6. THE USER INDEMNIFICATIONS OF WIPERAPP.
1. PLEASE NOTE THAT THE USE OF SOFTWARE AND THE RELATED SERVICES WILL RESULT IN THE ERASURE OF ALL (OR SPECIFIED) DATA AND FILES IN YOUR HARD DRIVE, COMPUTER SYSTEM STORAGE OR MOBILE DEVICE AND THAT THE USER HOLDS SOLE AND EXCLUSIVE RESPONSIBILITY FOR BACKING UP HIS DATA OR THIRD PARTY DATA UNDER CONTROL IN YOUR HARD DRIVE SYSTEM, STORAGE OR MOBILE DEVICE.
2. WIPERAPP SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA. The User hereby agrees to indemnify and save harmless Wiperapp and its authorized resellers (‘the Indemnified Parties’) from any claims and losses in any claims incurred (arising out of use of the Software by the User or by data loss) reported in any form (emerging from speeches, submissions, notices, summons) against any Indemnified Parties particularly in case, if they arise:
a)as a result of User’s actions, misuse of the Software, non-compliance with the Terms herein, or failure to operate the Software in accordance with Documentations,
b) in connection with or arising out the use of the Software in violation of any applicable laws.
3. The User acknowledges that the Software may be subject to restrictions applicable to use, import and export, including restrictions applicable to end-user, arising from local or international restrictions. The User agrees to comply with all applicable national and international laws that apply to the use and transport of the Software in any such jurisdiction.
4. WIPERAPP SHALL NOT HAVE ANY LIABILITY FOR THE USE OR INABILITY TO USE THE SOFTWARE REGARDLESS OF HOW THE LOSSES ARISED AND WHAT THEY REFER TO. WIPERAPP ALSO DOES NOT WARRANT THAT THE SOFTWARE WILL MEET USERS’ EXPECTATIONS. PARTICULARLY IN ANY EVENT WIPPERAPP SHALL NOT HAVE ANY LIABILITY FOR ANY LOSS, INCLUDING ANY LOSS OF DATA, LOSS OF BUSSINESS OPERATING RELATED REVENUE OR LOSS OF COMMERCIAL INFORMATION, AS A RESULT OF USE OR INABILITY TO USE THE SOFTWARE BUSINESS INTERRUPTION, LOSS RESULTING FROM SUBSTITUTE PURCHASE OF GOODS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL AND INDIRECT LOSSES, ARISING FROM USE OR INABILITY TO USE THE SOFTWARE, EVEN IF WIPERAPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INDEPENDENTLY OF THE CAUSE OF THESE DAMAGES OCCURING WHETHER IN A RESULT OF A FAULT CAUSING LACK OF OPERATION, FAULTY OPERATION, DELAYED OPERATION OR TRANSMISSION, DISRUPTION, REMOVAL, OR AS A RESULT OF NEGLECT, COMPUTER VIRUS, NO INTERNET CONNECTION, OPERATION, DAMAGE OR UNAUTHORIZED ACCESS, CHANGE OR USING THE RECORD; THE ABOVE LIST OF THE LOSSES WIPERAPP IS NOT RESPONSIBLE FOR, AND THE CAUSES OF THEM ARISING, IS EXEMPLARY AND NON COMPREHENSIVE.
5.IN ANY EVENT, THE AGGREGATE LIABILITY (WHETHER IN CONTRACT, WARRANTY,TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY BASED OF WIPERAPP, ITS AFFILIATES AND ITS AUTHORIZED DISTRIBUTORS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED THE LICENSEFEES PAID BY YOU FOR THE SOFTWARE WHICH GAVE CAUSE TO THE CLAIM. THESE LIMITATIONS AND EXCLUSIONS SHALL NOT APPLY TO ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW, THEN WIPERAPP LIABILITY IS LIMITED IN THE HIGHEST PERMISSIBLE EXTENT.
6. Wiperapp Force Majeure
Wiperapp shall have no liability to or any third parties, under this Agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, which also include strikes, lock-outs or other industrial disputes (whether involving the workforce of Wiperapp or the other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of a device or plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. Wiperapp shall notify the User of such an event and its expected duration.
7. WIPERAPP INDEMNIFICATION TOWARDS THE USER.
1. Wiperapp warrants that any part of the Software shall not, when used by the User in accordance with this Agreement, infringe any intellectual property rights of a third party in the country of delivery.
2. Wiperapp may, at its option, either defend or settle any claim made against the User by a third party alleging that the Software, infringes a right of a third party, or Wiperapp may pay the costs and damages finally awarded against the User by a competent court or an out-of-court settlement; but only upon all these conditions that
a) the User will notify Wiperapp within thirty (30) days of receipt of any third party claim;
b) Wiperapp will be granted the exclusive right to arrange any defense or settlement; and
c) You will not make any statement contradictory to the interests of Wiperapp in connection with such claim and during the claim is being processed.
3. The above mentioned indemnifications and warranties do not apply to Third Party Software.
8. TERMINATION.
1. Without prejudice to the User’s payment obligations, the User may terminate his license at any time by uninstalling the Software.
2.Wiperapp may terminate the User’s license immediately in the event that the User materially breaches the terms of this Agreement.
3. In particular, Wiperapp shall preserve the right to terminate agreement at their discretion in the case the User’s actions infringe the allowed use of the Software in particular, but not only by the User permitting the Software to be used for:
a) promoting obscene, pornographic or clearly sexual acts;
b) promoting acts and content containing violence, threats, harm, molesting, race, sex, religion, disability, sexual orientation or age discrimination, indecency;
c) promoting or taking criminal or illegal actions;
d) infringing intellectual or business property of third persons;
4. Should the agreement cease or terminate, regardless of cause, the User ceases to be entitled to use the Software, without any entitlement to damages and he must uninstall the Software and remove and destroy all the copies of Software and documentation.
5. Regardless of the above mentioned provisions, the User infringing the Agreement and applicable law is subject to civil and criminal liability provided by provisions of the law, applicable to the infringement.
6. The User hereby agrees to indemnify and save Wiperapp harmless against any losses, damages, costs and/ or expenses (including fees and juridical representation costs) arising from User’s breach of the law or provisions of this Agreement or using the Software.
7. This agreement, regardless of the above, may be terminated by any of the parties effective at the end of the month.
8. A waiver of any right under this agreement is only effective if it is in writing and such waiver should apply only to the party to whom it is addressed and for the situations and claims mentioned in the waiver.
9. CONFIDENTIALITY.
1. “Confidential Information” means all information (whether written, oral or in electronic form) concerning the business and affairs of either party that the other party obtains or receives as a result of the discussions leading up to or the entering into or the performance of this Agreement.
2. A party receiving Confidential Information (the „Recipient”) shall keep in strict confidence all such Confidential Information of the other party (the „Discloser”). Both Parties agree in relation to the Confidential Information belonging to the other Party that during this Agreement and for five (5) years afterwards they shall:
a) keep such information confidential and shall not disclose it to any third party,
b) use such information only in so far as is necessary to perform this Agreement.
3. The Recipient shall be responsible for any unauthorized disclosure or use of the Discloser’s Confidential Information made by any of its employees, officers, agents, representatives or sub-contractors and shall take all reasonable precautions to prevent such unauthorized disclosure or use.
4. The above restriction as to disclosure and use shall not apply to Confidential Information which:
a) the Recipient can demonstrate by documentary evidence has been in its possession prior to disclosure by the other party and not subject to any other obligations as to confidentiality;
b) the Information is required to be disclosed by law, regulation or pursuant to an order of a competent authority,
c) or at the time of receipt by the receiving party, is in the public domain.
10. NOTICES.
1. Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx or DHL). You may not provide notice to Wiperapp of a Wiperapp breach or provide notice of termination of this Agreement by electronic mail.
2. Notices from Wiperapp to the User will be effective:
a) in the case of notices by email, one (1) day after sending to the email address provided to Wiperapp,
b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Wiperapp.
3. The User hereby consents to service of process being effected on him by registered mail sent to the address stated.
4. Notices from You to Wiperapp will be effective:
a) in the case of notices by email, one (1) day after sending to (and receipt by Wiperapp at) the email addresses stated in the Order Form, or
b) in the case of notices by mail or delivery service, when received by Wiperapp at the address stated in the Order Form.
11. THE ENTIRE AGREEMENT.
1. Nothing in this Agreement is intending to create a partnership between the parties, or authorize either party to act as agent for the other. Neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (which may include the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
2.This Agreement specifies the entire agreement between You and Wiperapp relating to the subject matter hereof and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered herein. Nothing contained in any purchase order submitted by a party other than order dates, identity, location, quantity and price shall in any way serve to modify or add to the terms of this Agreement.
3. If any term or other provision of this Agreement is invalid, illegal or incapable or being enforced by any rule of law or public policy, all other terms and provisions of this Agreement shall still remain in full force and effect as long as its economic and legal intentions are not adversely affecting any party in any manner.
4. Any rights or obligations under this Agreement may be delegated -as a part or as a whole- to any third parties.
12. FINAL PROVISIONS.
1. Both parties agree to the application of the Polish laws of the to govern, interpret, and enforce all of the User’s and Wiperapp’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles, to the extent permissible in consumer’s law.
2. All rights, duties, and obligations are subject to the courts of the Republic of Poland, to the extent permissible in consumer’s law.
3. English is the language of this Agreement, in the extent permissible in consumer’s law.
4. All correspondence to Wiperapp and any complains should be addressed to:
WIPERAPP EP sp. z o.o. sp.k.
Ul. Kominiarska 42B
51-180 Wrocław
Polska