0. Overview; Binding Agreement
This Evaluation Agreement (this “Agreement”) applies by and between Applica spółka z ograniczoną odpowiedzialnością (Polish limited liability company) with its registered seat at Zajęcza Street 15, 00-351 Warsaw, entered into entrepreneurs register of National Court Register under number 0000443451 (“Applica”, “we”, or “us”), and the customer/user (“Customer”, or “you”) who is accessing or using the Platform (as defined below). By accessing or using the Platform, you agree to be bound by this Agreement. If you do not agree to this Agreement, you are noy allowed to access or use the Platform. The “Effective Date” of this Agreement is the date you first access or use the Platform. If you are accessing or using the Platform in your capacity as an employee, consultant or agent of the contracting entity, you represent that you are an employee, consultant or agent of that entity, and that you have the authority to bind that entity to this Agreement. Applica reserves the right to change or modify this Agreement, or any of our other policies or guidelines, at any time upon notice to you. We may provide that notice in a variety of ways, including, without limitation, sending you an email or posting the revised Agreement on our web site and revising the date at the top of this Agreement. Any changes or modifications will be effective after we provide notice that this Agreement has been modified. You acknowledge that your continued access or use of the Platform following such notice constitutes your acceptance of the modified Agreement. For the purposes of this Agreement: (i) “Platform” means the Applica-proprietary application(s) that you will be allowed to access during the Evaluation Period, as such applications are set forth in the Ordering Document; (ii) the “Evaluation Period” means the number of days that you will have to evaluate the Platform, as set forth in the Ordering Document (if no timeframe is set forth in the Ordering Document, the default Evaluation Period will be fourteen (14) days); and (iii) the “Ordering Document” is the order form or other ordering document that details the portions of the Platform to be evaluated, along with the Evaluation Period.
1. Evaluation License; Restrictions
Subject to the terms of this Agreement, Applica grants you a limited, non-exclusive, non-transferable license to access and use the Platform during the Evaluation Period, solely for the purpose of evaluating whether to purchase a paid subscription to the Platform, and not for general production use. Unless otherwise set forth in the Ordering Document, there is no fee associated with this grant of access during the Evaluation Period. If you decide that you want to use the Platform beyond the Evaluation Period or for any production purpose, you will need to buy a paid subscription, and accept a new agreement for that purpose. As between the parties, Applica owns all right, title and interest in and to the Platform, and reserves all rights not granted herein. You agree not to: (i) sublicense, sell, rent, assign, or distribute the Platform to third parties; (ii) allow any third party to access or use the Platform; (iii) host the Platform or utilize the services provided by the Platform for the benefit of third parties; (iv) modify the Platform, or any proprietary rights notices therein; or (v) disassemble, decompile, or reverse engineer the Platform, or any part of it. Each party will bear its own costs associated with its performance under this Agreement.
2. Term and Termination.
Unless terminated as provided for in this Section 2, this Agreement will continue in effect throughout the Evaluation Period. This Agreement will automatically terminate without the requirement of notice at the end of the Evaluation Period, unless the parties mutually agree in writing to an extension. Either party can terminate this Agreement upon written notice to the other if the other party breaches any provision of this Agreement, and fails to cure the breach within thirty (30) days of receiving notice of it. Applica reserves the right to terminate this Agreement immediately upon written notice to you, and without giving you a cure period, if you breach any of the terms of this Agreement relating to our intellectual property (including your compliance with the access grant and any restrictions) or our confidential information. When this Agreement terminates or expires: (i) the Evaluation Period will end; and (ii) you will no longer have the right to access or use the Platform. The following provisions will survive the termination or expiration of this Agreement: Restrictions; No Warranty; Disclaimer; Confidentiality; Limitation of Liability; Miscellaneous.
3. No Warranty; Disclaimer; Limitation of Liability.
You acknowledge and agree that the Platform is provided “AS IS” and without warranty of any kind, express or implied. WE HEREBY SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You acknowledge that Applica is continuously training and improving its machine learning models (the “Models”) that the Platform utilizes. With that in mind, you agree as follows: (i) that Applica may use any data you submit to the Platform to train and improve the Models; (ii) that the Models will not retain your data; (iii) that the Models, and any improvements thereto, will be and remain Applica property in all respects; and (iv) that Applica is free to use the Models (and any improvements thereto) without restriction, both during and after the term of this Agreement.
For the purposes of this Agreement, “Confidential Information” means any business or technical information that either party discloses to the other, in writing, orally, or by any other means, pursuant to this Agreement. For the purposes of this Agreement, the Models, the Platform, and any associated documentation will be deemed to be Applica Confidential Information, regardless of whether they are marked as such. Neither party will use the other party’s Confidential Information, except as permitted under this Agreement. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, “Representatives”): (i) who have a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 5, and (iii) who are informed of the nondisclosure obligations imposed by this Section 5. Each party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure provides reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 5 shall remain in effect during the term of this Agreement, and for five (5) years thereafter. Notwithstanding the foregoing, to the extent that any Confidential Information is trade secret information, such Confidential Information will be protected in perpetuity for as long as it remains a trade secret. The restrictions set forth in this Section 5 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party’s Confidential Information.
The English version of this document will prevail over any translation. Any personal data contained in this Agreement (addresses, email, etc.) will be processed by the parties, as independent data controllers, in order to comply with the purpose of this Agreement, and will be kept for as long as the relationship is maintained or for as long as necessary in order to comply with applicable legal obligations. Any personal data you input into the Platform is subject to the terms of our DPA. Data subjects may exercise their data protection rights by means of written notice to each party to the address provided in the heading of this Agreement. Applica has appointed a Data Protection Officer who may be contacted at the following email address: firstname.lastname@example.org. Data subjects may file a complaint with the competent authority. You agree to indemnify and hold Applica harmless from and against any and all actual or threatened suits, actions, claims, damages, and losses arising out of or relating to your access to or use of the Platform. This Agreement will be governed by the laws of the Republic of Poland. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in Warsaw, and the parties irrevocably consent to the personal jurisdiction and venue there. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply. Neither party may assign this Agreement without the other party’s written consent. In the event that any provision of this Agreement is deemed unenforceable, this Agreement will be modified to give as much effect as possible to that provision. Any provision that cannot be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect. A party’s obligations can only be waived in a writing signed by an authorized representative of the other party. The parties are independent contractors. This Agreement is the entire agreement of the parties with respect to its subject matter. This Agreement is the only agreement between the parties, and the terms of any purchase order, written terms or conditions, or other document that you submit to us that contain terms that are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected by Applica, and will be void and of no effect.
AGREEMENT ON PROCESSING OF PERSONAL DATA
Applies by and between Customer as defined in Main Agreement and Applica.ai - Applica spółka z ograniczoną odpowiedzialnością (Polish limited liability company) with its registered seat at Zajęcza Street 15, 00-351 Warsaw, entered into entrepreneurs register of National Court Register under number 0000443451. The “Effective Date” of this Agreement is the date you first access or use the Platform defined in Main Agreement.
The Customer and the Applica.ai are hereinafter jointly referred to as the “Parties” and individually as a “Party”.
1. Subject matter of the agreement
1.1. The Data Processing Agreement is concluded in connection with the license agreement of (“Main Agreement”) and for the purposes of the performance of services concluded according to the Main’s Agreement’s provisions. The personal data processing in connection with the performance of the Main Agreement is subject to Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (“Regulation”).
1.2. Any personal data contained in Main Agreement (addresses, email, etc.) will be processed by the parties, as independent data controllers, in order to comply with the purpose of this Agreement and will be kept for as long as the relationship is maintained or for as long as necessary in order to comply with applicable legal obligations.
1.3. Under the Data Processing Agreement, the Customer transfers the Personal Data used in Platform to the Applica.ai for processing. This Agreement applies to any data used in Platform that may contain Personal Data. The addition or removal of a specific data requires the consent of both Parties expressed in document form.
1.4. Applica.ai processes Personal Data solely for the purpose of performing the Main Agreement and the Tests, to the extent necessary to perform it and only during its term.
1.5. Applica.ai is obliged to process personal data in accordance with the Regulation, other applicable provisions of law and the Entrustment Agreement.
1.6. Applica.ai represents that it has the infrastructure resources, experience, knowledge and qualified personnel that allow it to perform this Entrustment Agreement properly and in accordance with applicable laws and regulations.
2. Obligations of the parties
2.1. Applica.ai is obligated to:
2.1.1. applying all technical and organizational measures securing the Personal Data in accordance with the principles specified in Article 32 of the Regulation;
2.1.2. assist if possible and necessary the Customer in fulfilling the obligations set forth in Articles 32–36 of the Regulation;
2.1.3. ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
2.1.4. in the event of detecting a breach of Personal Data – notify the Customer of such breach promptly but not later than within 12 hours of its detection;
2.2. Applica.ai is entitled to entrust the processing of Personal Data to its processors, a list of which is provided in Supplement A to the Data Processing Agreement. Applica.ai will inform the Customer of any intended change in the list of processors in the manner accepted for communication under the Main Agreement.
2.3. Applica.ai will provide the Customer with the information necessary for the performance of its duties related to processing of Personal Data.
2.4. Applica.ai may authorize persons acting on its behalf, including processors, to process Personal Data which includes issuing Personal Data processing instructions to these entities.
3. Data transfer
3.1. The Processor will not transfer Personal Data to any third countries (i.e. outside the EEA), unless it obtains the Customer’s prior consent in this respect, which will be null and void unless expressed in writing, and such transfer will be effected in accordance with the provisions of the Regulation.
4.1. Data Processing Agreement is concluded for the term of the Main Agreement. Termination of this Data Processing Agreement will be made in writing, otherwise being null and void.
4.2. Any amendments to this Data Processing Agreement will be made in writing, otherwise being ineffective, except for the situations in which this Data Processing Agreement expressly provides for a different form of making amendments.
4.3. Any capitalized terms that are not defined in the Data Processing Agreement have the meanings ascribed to them in the Main Agreement.
4.4. Any disputes related to the Data Processing Agreement will be resolved by a court of jurisdiction in accordance with the Main Agreement.
4.5. The supplements to this Data Processing Agreement constitute an integral part hereof. List of supplement:
4.5.1. Supplement A – List of sub-processors:
* Atman Warsaw, Grochowska 21a, 04-186, Poland - Colocation, Data Centre
* Microsoft Azure Region ‘westeurope’, Holland - Cloud, Data Centre