(Beta Version)
This Brain Application License Agreement (the "Agreement") is entered into between you, acting in the name and on behalf of the business entity you represent ("Licensee" or "you"), and The Up spółka z ograniczoną odpowiedzialnością, a company incorporated under the laws of Poland, with its registered office in Lublin, Poland ("The Up", "we", or "us"), governing Licensee's access to and use of the Brain Application.
If you are accessing or using the Application on behalf of a legal entity, you represent and warrant that you have the authority to bind that entity, and "Licensee" refers to that entity.
By accessing or using the Application, Licensee agrees to be bound by this Agreement. If Licensee does not agree, it must not access or use the Application.
This Agreement governs the Brain Application only. The Brain SDK License Agreement is a separate and independent instrument governing developer access to the Brain SDK. Where a customer has entered into both agreements, each agreement governs solely the product to which it relates, and neither agreement affects the interpretation or performance of the other.
Subject to the terms of this Agreement and any applicable Order Form, The Up grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, during the Term, to access and use the Application solely for Licensee's internal business purposes and solely through Authorized Users. This license does not extend to Licensee's own customers, affiliates, or any other third party, and does not permit Licensee to make the Application available to any third party in any form, unless expressly agreed in writing by The Up.
Licensee shall not, and shall not permit any Authorized User or third party to:
Licensee represents and warrants that: (a) it is a legal entity, or a natural person, acting exclusively within the scope of its business or professional activity within the meaning of Article 43¹ of the Polish Civil Code; (b) it will not make the Application available to, or use it on behalf of, consumers (konsumenci) within the meaning of Article 22¹ of the Polish Civil Code; and (c) its use of the Application is directly related to its business activity within the meaning of Article 38a of the Act on Consumer Rights. The Up may suspend Licensee's access if it reasonably determines that this representation is inaccurate.
Licensee acknowledges that the Application is provided as a Beta Version for evaluation purposes. The Up does not warrant that the Beta Version is complete, accurate, secure, uninterrupted, or fit for production or business-critical use. The Up may modify, suspend, limit, or discontinue the Application, in whole or in part, at any time and without liability, subject to Section 6.4. Licensee shall not rely on the Application for any purpose where a failure, inaccuracy, or unavailability of the Application could result in harm to persons, property, or Licensee's business operations, unless otherwise expressly agreed in writing.
As between the parties, Licensee retains all right, title, and interest in Licensee Data. Licensee is solely responsible for the accuracy, quality, and lawfulness of Licensee Data and for obtaining all rights, consents, and legal bases (including from its own employees, customers, or other data subjects, as applicable) necessary for Licensee Data to be submitted to and processed within the Application.
Licensee should avoid submitting personal data to the Application unless doing so is necessary for Licensee's use of the Application. Licensee is solely responsible for assessing whether Licensee Data includes personal data and for ensuring an adequate legal basis exists before any such data is submitted.
To the extent Licensee Data submitted to the Application includes personal data, The Up processes such personal data as a processor acting on Licensee's documented instructions, and solely for the purpose of providing, securing, and maintaining the Application. The Up shall: (a) ensure that persons authorized to process the personal data are subject to confidentiality; (b) implement appropriate technical and organizational security measures; (c) not engage a sub-processor without Licensee's prior general or specific authorization; (d) assist Licensee, insofar as reasonably possible, in responding to data subject requests and in meeting its obligations under Articles 32–36 GDPR; (e) at Licensee's choice, delete or return all personal data after termination in accordance with Section 6.5, save to the extent retention is required by law; and (f) make available to Licensee information reasonably necessary to demonstrate compliance with this Section and allow for audits, including inspections, conducted by Licensee or an auditor mandated by Licensee, subject to reasonable advance notice and confidentiality. This Section 3.2 constitutes the parties' data processing terms for the purposes of Article 28(3) GDPR. If Licensee intends to submit special categories of personal data within the meaning of Article 9 GDPR (including, for the avoidance of doubt, any biometric or neurophysiological data that may be capable of identifying an individual), Licensee shall notify The Up in advance, and the parties shall agree in writing on any additional safeguards required before such data is submitted to the Application.
The Up may collect and use Usage Data, in de-identified and aggregated form, to operate, secure, maintain, and improve the Application and its other products and services, provided that such Usage Data does not identify Licensee or any natural person.
The Application, including all improvements, modifications, and derivative works thereof, and all intellectual property rights therein, are and shall remain the exclusive property of The Up. No rights are granted to Licensee other than as expressly set out in this Agreement. Licensee retains ownership of Licensee Data, subject to Section 3.
If Licensee or any Authorized User provides comments, suggestions, or other feedback regarding the Application, The Up (and its affiliates) may use such feedback for any purpose, including the improvement and development of its products and services, without obligation or compensation to Licensee.
Access to the Beta Version is provided free of charge during the beta period. The Up may introduce fees for continued or expanded access to the Application following general availability, upon at least [30] days' prior written notice, in which case Licensee may terminate this Agreement before such fees take effect.
This Agreement commences on the date Licensee first accesses or uses the Application and continues until terminated in accordance with this Section 6.
Either party may terminate this Agreement for convenience upon [30] days' prior written notice to the other party.
The Up may suspend or terminate Licensee's access to the Application immediately and without notice if Licensee breaches this Agreement, in particular Section 2.2 or 2.3, or if required to do so by applicable law.
The Up may discontinue the Application, or the Beta Version, at any time in its sole discretion. This Agreement terminates automatically upon such discontinuation. Where reasonably feasible, The Up will provide Licensee with reasonable advance notice and an opportunity to export Licensee Data prior to discontinuation.
Upon termination, Licensee shall immediately cease all use of the Application. Upon Licensee's written request made within [14] days of termination, The Up shall make available to Licensee an export of Licensee Data in a reasonably accessible format, after which The Up may delete Licensee Data in accordance with its data retention policy, the data processing agreement referred to in Section 3.2 (if applicable), and applicable law.
"Confidential Information" means any non-public information disclosed by The Up to Licensee, in any form, that is designated as confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure, including the Application, its underlying technology and documentation, business plans, product roadmaps, and communications related to the Application.
Licensee shall: (a) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, but no less than reasonable care; (b) not disclose Confidential Information to any third party without The Up's prior written consent; and (c) use Confidential Information solely as permitted under this Agreement.
The obligations in this Section do not apply to information that: (a) was or becomes publicly known through no fault of Licensee; (b) was lawfully known to Licensee without restriction prior to disclosure; (c) is independently developed without reference to the Confidential Information; or (d) must be disclosed pursuant to a valid legal or regulatory requirement, provided that Licensee gives The Up prompt notice (unless legally prohibited) and reasonable cooperation in limiting the disclosure.
Confidentiality obligations survive for five (5) years following termination of this Agreement, or for as long as the relevant information remains non-public, whichever is longer.
The Application is provided "as is" and "as available", without warranties of any kind, express or implied, including warranties of merchantability, fitness for a particular purpose, accuracy, or non-infringement, to the maximum extent permitted by mandatory law.
To the extent permitted by law, neither party shall be liable for indirect, incidental, special, consequential, or punitive damages, or loss of profits, revenue, data, or business opportunity, arising out of or in connection with this Agreement or use of the Application.
The Up's aggregate liability arising out of or in connection with this Agreement shall not exceed PLN 500. If The Up begins charging fees for the Application pursuant to Section 5, this cap shall instead be the total fees paid by Licensee to The Up in the twelve (12) months preceding the event giving rise to the claim.
Nothing in this Agreement excludes or limits liability that cannot be excluded or limited as a matter of mandatory Polish law, including liability for damage caused intentionally (wina umyślna) within the meaning of Article 473 § 2 of the Polish Civil Code.
The Up may amend this Agreement from time to time by providing at least [14] days' notice (via the Application or by email). Continued use of the Application after the effective date of an amendment constitutes acceptance. If an amendment is materially adverse to Licensee, Licensee may terminate this Agreement before the amendment takes effect.
Licensee may not assign or transfer this Agreement, in whole or in part, without The Up's prior written consent. The Up may assign this Agreement without consent in connection with a merger, acquisition, reorganization, or sale of substantially all of its relevant assets.
This Agreement is governed by the laws of Poland. Any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the common court having local jurisdiction over the Śródmieście district of the capital city of Warsaw, Poland.
This Agreement, together with any applicable Order Form and data processing agreement, constitutes the entire agreement between the parties regarding the Application and supersedes all prior agreements or understandings on that subject.
If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be replaced with a valid provision that most closely reflects the parties' original intent.
Notices under this Agreement shall be made in writing and sent to the addresses or email addresses designated by each party for this purpose.
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