Introduction
These Terms of Service (the “Terms”) is a binding legal agreement between HeroCoders Sp. z o.o., a company incorporated under the laws of Poland, with its registered office in Gdańsk, Poland (postal code: 80-119) at ul. Zosi 16, entered into the Register of Entrepreneurs of the National Court Register by the District Court Gdańsk-North in Gdańsk, VII Commercial Division of the National Court Register, under KRS number: 0000910925, Tax ID: 5833433174, National Business Registry Number: 389423957, with the share capital of PLN 75,000.00 (“HeroCoders”, “we” or “us”), and a customer (“you”), being a person, entity or organization using our Services including, but not limited to, our Apps (as defined below), hereinafter referred to together as the “Parties” and individually as a “Party”.
If you are an individual using our Services including, but not limited to, our Apps on behalf of your company, organization or other entity (wherein using an email address from your employer or another entity shall be deemed to represent that party), then “you” means your entity and you are binding your entity to the Terms.
By referring to the “Partner Platform” or “Partner Platforms”, we imply our marketplace partners, which include, but are not limited to, the Atlassian Marketplace Platform (Jira), the Microsoft Corporation Commercial Marketplace Platform (Microsoft Teams), and monday.com’s Marketplace (monday.com) with which HeroCoders has executed partnership agreements with respect to publishing, promotion, selling, testing and distribution of our Apps. We encourage you to read the Partner Platforms’ terms and conditions, as well as their privacy policies and other public documents, before purchasing (if applicable), installing and using our Apps since they may apply to you along with the Terms. In case you need further information about the Partner Platforms, please contact us at: support@herocoders.com.
The Terms govern:
(i) your use of our products and services, including all of our SaaS/Cloud software products (the “Cloud-Based Saas Products”), plug-in applications and downloadable software products that we resell (the “Downloadable Software with Perpetual Licensing", the “Subscription-Based Downloadable Software”) offered to you through our website https://www.herocoders.com (the “Website”) or through the Partner Platforms (collectively, the “Apps”);
(ii) your use of our other services provided in connection with the Apps including, but not limited to, through our Website, and any of its subdomains.
We refer in the Terms to all of these products, the Apps, the Website and any of its subdomains, together with our other services provided in their connection, as the “Services”, or if severally, as the “Service”.
1. Acceptance of the Terms
1.1. The Terms apply to all our Services including, but not limited to, the Apps licensed to you. Before purchasing (if applicable), installing or using the Services, please carefully read the Terms. By purchasing (if applicable), installing or using the Services, you represent that you have read, acknowledged and understood the Terms and agree to be bound by the Terms and use the Services in accordance with and subject to the Terms, our Privacy Policy and the Data Processing Agreement (if applicable) including, without limitation, the terms of other documents and policies that are incorporated herein by reference or mentioned. If you are entering into the Terms on behalf of another person, company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity to the Terms.
1.2. If you do not agree to the Terms, you are not of legal age or not able to form a legally binding contract, or you do not have the necessary authority, you are not authorized to install or use the Services for any purpose whatsoever and you must not accept the Terms and may not use the Services.
1.3. HeroCoders is a vendor on the Partner Platforms. As such the Terms are governed by the Atlassian Marketplace Terms of Use and related Atlassian terms and conditions for Jira apps; the Microsoft Commercial Marketplace Terms of Use and related Microsoft terms and conditions for Microsoft apps; and the monday.com’s Marketplace listings Terms and related monday.com terms and conditions for monday.com apps. These are collectively referred to as the “Partner Platforms Terms”. If you do not agree with the Partner Platforms Terms, you shall consequently not be authorized to use the applicable marketplace product and our Apps.
1.4. Please read the Terms carefully, as they contain important information concerning your rights and limitations on these rights, as well as information about the governing law and jurisdiction for the disputes.
2. Duration of the Term
Subject to the Terms and subject to the termination rights stipulated under the section 18 (Termination) hereof, the duration of the Terms shall continue in force for the period of:
(i) the Subscription License (defined below) or the renewal period of the Subscription-Based Apps (defined below);
(ii) the Evaluation Period (defined below) of the Evaluation License (defined below);
(iii) your utilization of the Free Apps as provided on the applicable Partner Platform until the Free Apps are uninstalled or removed from our Services offerings;
(iv) your utilization of the Downloadable Software with Perpetual Licensing until such software is uninstalled.
3. The Apps
3.1. HeroCoders develops add-ons for the Partner Platforms, which serve as the functional tools that help businesses to make their processes more effective by, e.g., making communication of goals and objectives or time reporting easier for teams using our add-ons.
3.2. We offer, without limitation, the following Apps (please note that the name of the App may change from time to time but its essence stays as follows)
(i) the Cloud-Based SaaS Products:
- Checklist Free for Jira;
- Checklist Pro for Jira;
- Checklist Enterprise for Jira;
- Clockwork Free for Jira;
- Clockwork Pro for Jira;
- Epics Map for Jira;
- Acceptance Criteria for Jira;
- Checklist for MS Teams;
- Clockwork for monday.com;
(ii) provided by Okapya Software Solutions Inc. (www.okapya.com) through HeroCoders as an exclusive reseller:
- the Downloadable Software with Perpetual Licensing - Checklist for Jira (Server);
- the Downloadable Software with Perpetual Licensing - Checklist for Jira (Data Center);
3.3. The list of the available Apps, their descriptions, conditions for installing, pricing and other details can be found at the Website or on the respective Partner Platform.
3.4. The Apps offered to you through the Partner Platforms are offered to you:(i) on a subscription basis (the “Subscription-Based Apps”); or (ii) free of charge, i.e. without billing (the “Free Apps”). The scope of the Subscription-Based Apps includes all the Cloud-Based SaaS Products as indicated in the provision 3.2(i) above as well as the Subscription-Based Downloadable Software as indicated in the provision 3.2(ii)b above. Please note that the Downloadable Software with Perpetual Licensing, mentioned in the provision 3.2.(ii)a above is no longer offered.
3.5. The Terms apply whether you purchase our Apps directly from HeroCoders, through the Partner Platforms, through an authorized reseller or otherwise. If you purchase through a reseller, your license rights shall be stated in the order provided to you by the reseller. Resellers are not authorized to make any promises, commitments or impose additional terms and conditions on our behalf, and we are not bound by any obligations to you other than what is included in the Terms.
3.6. To make use of our Apps, you may be required to register on the respective Partner Platform. You are to ensure that any information that you provide on the Partner Platform is correct, complete and current, as you shall be responsible for updating the accuracy of your information.
3.7. Once you have submitted an order for the subscription or renewal or use of the Apps via the Partner Platform or its authorized reseller, you shall be directed on your authorized use of the Apps which shall include: the type of license you have acquired, your name, contact details, the number of permitted users inside the Partner Platform’s product and the Cloud-Based SaaS Products or the Subscription-Based Downloadable Software, the required Fees, and any other related information as reasonably required.
3.8. The Apps shall be delivered electronically to you and you shall be responsible for the proper installation of the Apps.
3.9. You might need a valid user account with the Partner Platform in order to log into and use the Cloud-Based SaaS Products.
3.10. You may also create an account using our support portal if you wish to use HeroCoders Help Center to get product support or other Services relating to the Apps.
3.11. We have the right to change, modify, upgrade or add features to the Services including, but not limited to, the Apps at any time without any prior notice to you. Each material change to the Free App, resulting in the introduction of fees or limits on the use of the Free App is subject to prior notification, with the change becoming effective at least fourteen (14) days after notice. Please note that if you use the Free App, we may not have your contact information, thus such notice will be posted at our Website or at our Trust Center, which contains a mechanism to subscribe to notification about updates. Please check our Website periodically for any changes. We also have the right to discontinue the Services, subject to the section 18 (Termination).
4. Grant of License
4.1. The Terms entitle you to install and use the amount of copies of the App, which is specified in the license terms and conditions of the particular App on the Website or respective Partner Platform. The Terms do not permit the installation or use of multiple copies of the Apps on a system that allows shared use of applications. Multiple copy use or installation is only allowed if you obtain the appropriate license for each copy of the Apps. Furthermore, the Apps may only be installed and used on the systems you own, lease or which are controlled by you, or your third party service provider, provided you remain responsible for the third party’s compliance with the Terms.
4.2. Subject to the Terms, you are granted a worldwide, non-transferable, non-exclusive, non-sublicensable, “as-is” right to install and use the Apps for the term and applicable licensing Fees that is associated with the particular App you choose to purchase (if applicable).
4.3. The Apps are licensed to you either on a Subscription License, an Evaluation License, a Free License, or a Perpetual License, subject to the following terms:
(i) The Subscription License
The Subscription-Based Apps shall be granted on a time specific limit as per the subscription license (the “Subscription License”), providing you with a worldwide, non-exclusive, non-transferable, non-sublicensable use of the Subscription-Based Apps, subject to automatic renewal for successive monthly or annual terms unless either Party notifies the other of nonrenewal or we cease to make a particular App available in accordance with these Terms. If you cancel your subscription to the Subscription-Based Apps, your subscription will terminate at the end of the then-current billing cycle, and you will not be entitled to any refunds for amounts accrued or paid prior to such termination.
You acknowledge and agree to the use of the Cloud-Based SaaS Products, which are provided to you as a cloud service, and are hosted by us, our subcontractors or the Partner Platforms. You also acknowledge and agree that HeroCoders or the Partner Platforms may make changes to the Cloud-Based SaaS Products from time to time in accordance with the Terms and the Partner Platforms Terms.
(ii) The Evaluation License
The Partner Platform may provide you, at their sole discretion, with a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable license for the purposes of assessing the functionality of the Apps (the “Evaluation License”). The Evaluation License will provide you with the full version of the App or portion thereof for free, for 30 (thirty) days or 1 (one) billing cycle (the “Evaluation Period”) unless stated otherwise.
(iii) The Free License
The Free Apps shall be granted to you at no cost and shall be provided to you on a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable license (the “Free License”). Your use of the Free Apps shall be subject to any other terms and conditions as we deem necessary and shall be for a stipulated period of time.
(iv) The Perpetual License
The Downloadable Software with Perpetual Licensing shall be granted to you with a time-limited (e.g., a year or two years), worldwide, non-exclusive, non-transferable, non-sublicensable license (the “Perpetual License”), allowing you free upgrades in the limited amount of time the license was bought. The Perpetual License allows for an infinite usage of the bought version or the most recent version released within the “upgrade allowed” timeframe. Please note that after the Perpetual License expires, you still have the right to use the Downloadable Software with Perpetual Licensing, however we do not provide free upgrades, Maintenance Services or Support Services for such use.
4.4. In accordance with the clause 3.11 above, we will use commercially reasonable efforts to notify you in advance of any changes to the Free Apps. In the event of a material change to the Free App or its discontinuation, you may upgrade to a similar product offered as a Subscription-Based App, if available, and all your applicable data will be transferred by us to the Subscription-Based App automatically if possible.
4.5. We reserve the right to terminate or suspend your Subscription License, Evaluation Licence or Free Licence on the terms provided in the section 18 (Termination). If your Subscription License, Evaluation Licence or Free Licence is terminated or suspended by us for any reason, you may be further prohibited from being granted a new license, even if you may be acting on behalf of a third party.
5. Restrictions
The Apps are licensed, not sold, to you and we (or Okapya Software Solutions Inc. as for the Downloadable Software with Perpetual Licensing and the Subscription-Based Downloadable Software) shall retain ownership of all the Apps, including copies of the Apps. Accordingly, the following restrictions shall apply:
(i) Restrictions on Transfer
You may not assign your rights or obligations under the Terms, or redistribute, encumber, distribute, sell, rent, lease, sublicense, or otherwise transfer your rights to the Apps as granted to you under the Terms or make the Apps available to a third party without our prior written consent.
(ii) Restrictions on Use
You may not use, copy or install the Apps (and any part of the Apps) on any system, or permit the use, copying, or installation of the Apps on more than one Partner Platform’s products. If you hold multiple, validly licensed copies, you may not use, copy, or install the Apps on any system with more users than the number permitted by the applicable license. You may not use the Services in any manner, which is illegal or contravenes any applicable law, regulation or a third party’s intellectual property rights. Furthermore, you may not:
- decompile, reverse-engineer, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies of, create derivative works from, distribute or provide non-authorized users with access to the Apps in whole or part;
- use the Apps for the benefit of any third party;
- incorporate any of the Apps into a product or service you provide to a third party;
- interfere with any license key mechanism in the Apps or otherwise circumvent mechanisms in the Apps intended to limit your use;
- remove or obscure any proprietary notices on the Apps or any permitted copies of Apps;
- publicly disseminate information regarding the benchmarking performance of the Apps; or
- otherwise attempt to derive the source code of the Apps.
(iii) Restrictions on Alteration
You may not modify the Apps or create any derivative works of the Apps. Derivative works include, but are not limited to, translations. You may not alter any files or libraries in any portion of the Apps.
(iv) Restrictions on Copying
You may not copy any part of the Apps.
(v) Restrictions on Export
You acknowledge and agree to not export or re-export the Apps outside the jurisdiction in which the Apps were obtained by you without our prior written consent or as authorized by applicable laws and regulations. You shall be solely responsible for determining the existence of applicable laws and compliance with relevant laws as regards to the export of the Apps from the country of original purchase. We are not liable for your use of the Apps in your jurisdiction or as specified under the Terms. You are solely responsible for complying with applicable laws and obtaining any needed authorization for export. You agree to not export the Apps from any country where there are applicable legal restrictions on such export. We reserve all our rights not expressly granted to you under the Terms.
6. The Maintenance Services and Upgrades
6.1. We may provide you with version upgrades or enhancements of the Apps and make them generally available from time to time, in accordance with the Terms and the Partner Platforms Terms.
6.2. To address any technical issues you may have regarding the Apps, we shall provide you with online technical support (the “Maintenance Services”). The Maintenance Services shall be provided to you with reasonable skill and care for the duration of your Subscription License including any applicable renewal periods thereof, for the duration of the Evaluation License or the Free License.
7. The Support Services
7.1. We shall provide you with support services, which shall include, but are not limited to, bug fixes and patches (the “Support Services”) for the duration of your Subscription License including any applicable renewal periods thereof, for the duration of the Evaluation License or the Free License.
7.2. You can request the Support Services through one of the following channels:(i) by submitting a ticket to HeroCoders Help Center;(ii) via email at: support@herocoders.com; or(iii) for the Apps listed on the Atlassian Marketplace - on Atlassian Marketplace’s Community Forum. You acknowledge that requests made via the Atlassian Marketplace’s Community Forum are monitored by our support team and are answered on a best efforts basis.
7.3. The use of the Support Services is governed by our Service Level Agreement.
8. The Services Content, Intellectual Property, and Links
8.1. The Apps and the Website as a whole and our accounts on social media belong to us (unless otherwise stated in the Terms) and are protected by the intellectual property legislation. All the Apps and the Website information, content, software, graphics, text, sounds, images, buttons, trademarks, services marks, trade names, logos and the software required for our Apps and the Website used by or contained in the Apps and at the Website are owned by HeroCoders, HeroCoders’ licensors or partners (the “Intellectual Property Materials” or the “Services Content”), and protected by copyright, trademarks, national and international laws, conventions, treaties and other laws. You agree that we exclusively retain all right, title, interest and intellectual property rights in and to the Intellectual Property Materials.
8.2. Our Intellectual Property Materials may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, transferred, assigned, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of HeroCoders.
8.3. Nothing in the Terms shall operate to assign or transfer any intellectual property rights from us to you and vice versa (unless otherwise stated in the Terms). The intellectual property rights shall mean any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, and include all copyright and analogous rights, all rights in relation to inventions, patents, source code, software, trademarks and designs (whether registered or not), circuit layouts, trade names, trade secrets, business names, company names or the Internet domain names.
8.4. HeroCoders shall retain all right, title and interest in and to the Apps and the Website, as well as all the intellectual property rights not expressly granted by us under the Terms.
8.5. The Services may contain links to third-party websites or services, which do not belong to us, and we do not control them. We shall not be responsible for the content, privacy practices and the functioning of third-party websites and services. We disclaim any liability for any aspects of such third-party websites and services via your direct access or through the Website. Please read public documents of those third-party websites and services before using them.
9. User Content
9.1. “User Content” means any content created, posted, or shared by you, on or through the Services, including, without limitation, any information, data, and other content relating to you, especially used by you or your authorized user in the Apps.
9.2. In connection with the use of the Services and the Services Content or the User Content, you are not authorized to, nor can allow a third party to:
(i) violate any applicable laws, rules or regulations, notably cause damage or injury to any person or property, infringe any rights of third parties, including, but not limited to, any intellectual property rights and privacy rights or perform any other illegal, harmful or fraudulent activities;
(ii) probe, scan, or test the vulnerability of any system or network;
(iii) remove, circumvent, disable, damage or otherwise interfere with any security measures of any network, computer or communications system, software application, or network or computing device;
(iv) attempt to connect without permission or damage, in any way whatsoever, any users, hosts or networks;
(v) disturb, hamper, interfere or interrupt the access to or operation of the Services and the Services Content, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature;(vi) store more data than your subscription allows;(vii) store data prohibited by applicable law, by the Terms or by the Partner Platforms Terms.
9.3. You represent and warrant that you retain ownership of all of your intellectual property rights in the User Content or that this User Content is subject to a license granted to you by a third party holding these rights, under conditions allowing you to freely use or transfer these elements for the purpose of using the Services, under the conditions described in the Terms. HeroCoders does not claim ownership of the User Content.
9.4. You agree to hold HeroCoders harmless from all claims or actions brought by third parties on the grounds of an infringement of their rights, including, without limitation, publicity rights, copyrights, trademark or other intellectual property rights or privacy rights in the User Content.
9.5. You represent and warrant that by the time of entering by you or your authorized user any data to our Services including, but not limited to, the Apps, you will obtain all rights and consents necessary to use and share such data with us and our subcontractors. You also represent and warrant that you bear a sole liability for the data entered to our Services including, but not limited to, the Apps, especially for any personal data used in this regard.
10. The Fees and Payments
10.1. The Apps shall be offered to you either as the Subscription-Based Apps or the Free Apps, which is indicated in the description to each of the Apps on the respective Partner Platform.
10.2. The Partner Platforms are responsible for handling subscriptions and payments on our behalf. HeroCoders as a vendor of the Partner Platforms sets the price only and does not handle any payments for the Apps. For instance, on the Atlassian Marketplace, HeroCoders only sets the per-user price. The final price in this case is calculated by Atlassian Pty Ltd or its affiliates and HeroCoders has no control over it.
10.3. The Fees for the Subscription-Based Apps shall be charged based on the number of users subscribed on your side, unless otherwise stipulated by the Partner Platform’s Terms licensing terms and conditions. You can refer to the Partner Platform’s Terms to find out more about factors affecting the price you will be charged:
(i) for Atlassian Marketplace refer to the Marketplace App Licensing;
(ii) for Microsoft Marketplace, refer to the Purchasing and Billing section of the Microsoft Commercial Marketplace Terms of Use;
(iii) for monday.com’s Marketplace, refer to the Pricing, Collection and Revenue Sharing section of monday.com’s Marketplace listings Terms.
10.4. The Partner Platforms may offer you an Evaluation License on the terms set forth in the Terms and in the Partner Platform’s Terms:
(i) for Atlassian Marketplace, refer to the Atlassian Marketplace Terms of Use;
(ii) for Microsoft Marketplace, refer to the Microsoft Commercial Marketplace Terms of Use;
(iii) for monday.com’s Marketplace, refer to the monday.com’s Marketplace listings Terms.
10.5. The Evaluation License implies that you may use the App free of charge for the Evaluation Period, unless otherwise stated on the Website or Partner Platforms. Upon the expiry of the Evaluation Period, you shall be obligated to pay for the subscription plan you chose or uninstall the App. Otherwise, the App and all of its components shall cease to function or operate under certain limitations.
10.6. You agree to pay all applicable fees for the Apps (the “Fees”) on their due date and in a manner directed at the time of subscribing (or the subscription renewal) for the Apps. Should you fail to pay the applicable Fees, this may result in the termination of the licenses granted to you under the Terms, according to the section 18 (Termination) or in the Partner Platform’s Terms.
10.7. The Fees for the Apps are non-refundable, unless otherwise stipulated by the Terms or the Partner Platform’s Terms.
11. Warranties, Acknowledgements, and Warranty Limitations
11.1. We warrant that HeroCoders has the legal right and authority to enter into the Terms and to perform its obligations under the Terms.
11.2. You acknowledge and warrant to us that you have the legal right and authority to enter into the Terms and to perform your obligations under the Terms.
11.3. You acknowledge and agree that HeroCoders is the sole owner of the Cloud-Based SaaS Products (and the exclusive reseller of the Downloadable Software with Perpetual Licensing and the Subscription-Based Downloadable Software), including improvements made based on the feedback you may provide about the Apps (the “Improvements”). You hereby agree you will make no claims of intellectual property rights to such Improvements or to such modified software, programs, data structure or other intellectual property created pursuant to the Improvements, and where HeroCoders is not by law the first owner of such Improvements, you hereby assign and transfer to HeroCoders any and all right, title and interest you have or may have in the Improvements, to the maximum extent permitted by applicable law.
11.4. All of the Parties’ warranties and representations in respect of the subject-matter of the Terms are expressly set out in the Terms. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject-matter of the Terms will be implied into the Terms or any related contract.
11.5. You acknowledge that:
(i) generally, software is never wholly free from defects, errors and bugs; and therefore subject to the other provisions of the Terms, we give no warranty or representation that the Apps will be wholly free from defects, errors and bugs;
(ii) generally, software is never entirely free from security vulnerabilities; and therefore, subject to the other provisions of the Terms, we give no warranty or representation that the Apps will be entirely secure;
(iii) the Apps are only designed to be compatible with the respective Partner Platforms’ software applications; and we do not warrant or represent that the Apps will be compatible with any other software;
(iv) the Apps may use third-party hosting services which may be provided to you without any warranties. As such, HeroCoders cannot ensure that these third-party hosting services are provided to you free of defect or without interruption, however we use all commercially reasonable efforts to use hosting services provided only by our trusted partners.
12. DISCLAIMER OF WARRANTIES
THE SERVICES INCLUDING, BUT NOT LIMITED TO, THE APPS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND HEROCODERS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT HEROCODERS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM HEROCODERS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. WITHOUT LIMITATION TO THE FOREGOING, HEROCODERS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
13. Publicity Rights
13.1. Except as prohibited by applicable law, HeroCoders has the right to use any emails, surveys, other information or feedback you provide to us through the Services or via any other medium in any manner, including, but not limited to, for testimonials, reviews and ratings on our Website or third-party websites. We undertake to comply with a written (email shall suffice) request to discontinue such use within 30 (thirty) days.
13.2. You hereby agree that HeroCoders may use your name and logo for the purpose of identifying you as our customer or the user of the Apps, especially by placing your name and/or logo on the Website next to the names and/or logos of our other customers. We undertake to comply with a written (email shall suffice) request to discontinue such use within 30 (thirty) days.
13.3. Information provided as indicated above may be used by HeroCoders regardless of the section 15 (Confidentiality) and will not constitute a breach of any obligations under the Terms, especially confidentiality provisions.
14. Privacy and Data Protection
We are committed to protecting your privacy. The provisions of our Privacy Policy and the Data Processing Agreement (if applicable) will govern any personal information or personal data gathered from you in connection with the Services including, but not limited to, the Apps.
15. Confidentiality
15.1. The performance of the Terms may contain a disclosure by one Party to the other of information that: (i) is designated by the disclosing Party as proprietary or confidential, or (ii) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure (“Confidential Information”). HeroCoders Confidential Information includes any source code and technical or performance information about the Services including, but not limited to, the Apps. Your Confidential Information includes the User Content, unless otherwise specified in the Terms.
15.2. Unless expressly permitted by the Terms or by the disclosing Party in writing (email shall suffice), the receiving Party must: (i) hold the disclosing Party’s Confidential Information in confidence and not disclose it to third parties except as permitted in the Terms, and (ii) only use such Confidential Information to fulfill its obligations and exercise its rights under the Terms. The receiving Party may disclose such Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for HeroCoders, the subcontractors referenced in the clause 19.6), provided the receiving Party remains responsible for their compliance with this section and they are bound to confidentiality obligations no less protective than this section.
15.3. These confidentiality obligations do not apply to information that the receiving Party can demonstrate: (i) is or becomes publicly available through no fault of the receiving Party, (ii) it knew or possessed prior to receipt under the Terms without breach of confidentiality obligations, (iii) it received from a third party without breach of confidentiality obligations, or (iv) it independently developed without using the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information if required by law, subpoena, court or administrative order, provided it cooperates in any reasonable effort to obtain confidential treatment.
15.4. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or anticipated breach of this section.
16. Limitation of Liability
16.1. You agree that your use of the Services including, but not limited to, the Apps is at your own risk. To the maximum extent permitted by applicable law, in no event shall HeroCoders be liable to you for, or to those claiming through you for, any indirect, consequential, incidental or special damage or loss of any kind including, but not limited to, loss of profits, loss of contracts, business interruptions, cost of substitute goods or services, loss of or corruption of data, however caused, and whether arising under contract or tort (including, without limitation, negligence). The limitations in this clause shall apply notwithstanding the failure of the essential purpose of any remedy.
16.2. In no event shall our aggregate liability to you arising out of or in connection with the Terms (including the Data Processing Agreement), from all causes of action and theories of liability (including, without limitation, negligence), exceed the amounts paid for the current subscription period of the Subscription-Based Apps. HeroCoders shall not be liable to you for the Free Apps.
16.3. Additionally to the limitation of liability provided in the clause 19.4 (Force Majeure), in no event shall HeroCoders be liable for any failure of performance due to circumstance beyond our control including, but not limited to, a power outage, computer virus, malware, spyware, keylogger application, system failure, fire, flood, earthquake, terrorism, act of war, or extreme weather conditions.
17. Indemnity
17.1. Upon becoming aware of an actual or potential breach or claim or infringement connected to your cooperation with HeroCoders, you agree to cooperate with HeroCoders at your expense and you agree to notify us and provide us with all such assistance as may be reasonably requested to allow us the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties. You must, furthermore, not admit liability to any third party or settle any disputes or proceedings involving a third party without our prior written consent.
17.2. You shall indemnify, defend and hold HeroCoders (including its officers, directors, employees, contractors and assigns) harmless from and against any and all losses, claims, liabilities, suits, actions and expenses (including legal counsel fees, legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by us, arising directly or indirectly from: (i) any information that is inaccurate, not up to date, incomplete, misleading or a misrepresentation; (ii) any breach of the Terms by you or your authorized user; (iii) any misuse of the Services by you, your employees, contractors or your authorized users; (iv) any breach of law, regulation or license by you or your authorized user; and (v) any claim brought by a third party arising out of or in connection with your or your authorized user’s use of the Services.
18. Termination
18.1. Subject to the provisions remaining in force even after termination, the Terms may terminate through: (i) the expiration of the Subscription License; or (ii) the expiry of the Evaluation Period; or (iii) the uninstallment of the Free App; or (iv) the uninstallment of the Downloadable Software with Perpetual Licensing; or (v) the termination for convenience; or (vi) the termination for cause.
18.2. You may cease to use our Services including, but not limited to the Apps, for any reason and at any time. In this case you will not be entitled to refund of any portion of the Fees you have paid for the Apps, unless otherwise decided by the respective Partner Platform, however you have the right to use the Apps again, to the extent consistent with the Terms and Partner Platform’s Terms.
18.3. We may terminate the Terms for convenience, with 30 (thirty) days’ prior written (email shall suffice) notice, after which period the Terms will automatically terminate. In this case you have the right to file for a refund via the respective Partner Platform, unless otherwise stated in the Partner Platforms Terms. Please note that the refund depends on the respective Partner Platform decision.
18.4. We may terminate the Terms for cause if you materially breach them or any other agreement you have entered into with us and you fail to cure such a material breach within 10 (ten) days after a written (email shall suffice) notice, after which period the Terms will automatically terminate. Material breach shall include, but is not limited to, your failure to provide timely payment of the Fees when they have become due and owing, significantly putting our system at risk e.g. as a result of not using the designated user interface elements to access or store data and non-UI access as per the applicable documentation, attempting to access all your data at once from our servers or store more data than can be displayed in UI, disclosing our Confidential Information or breaching our intellectual property rights. In this case you will not be entitled to a refund of any portion of the Fees you have paid for the App.
18.5. The Terms will expire as a result of the termination of our marketplace agreement with the respective Partner Platform due to a reason indicated therein. In this case you have the right to file for a refund via the respective Partner Platform, unless otherwise stated in the Partner Platforms Terms. Please note that the refund depends on the respective Partner Platform decision.
18.6. Please note that if you use the Free App, we may not have your contact information, thus we will use commercially reasonable efforts to notify you about the circumstances indicated in this section 18 through the Free App, if possible.
18.7. In the event where it has been found that you have caused a material breach as indicated above or a potential material breach, regardless of our right described in the provision 18.4, HeroCoders may, at its sole discretion, temporarily deny you access to the Services including, but not limited to, the Apps and delete harmful data, so as to afford us with the opportunity to protect our systems and our other customers. If we delete any data, we will back it up for at least 30 (thirty) days, and provide you with the backup, provided we have your contact details (Subscription-Based Apps contain customer contact details, Free Apps may not). After the expiration of the aforementioned period, backed up data might be permanently deleted at our sole discretion without any further notice.
18.8. Upon expiration or termination of the Terms, you shall cease all use of the Services including, but not limited to, the Apps and you shall reasonably cooperate in: (a) removing, uninstalling or deactivating all copies and components of the Apps; and (b) satisfying all financial obligations you may have to us. Following expiration or termination, unless prohibited by applicable law or otherwise stated in the Terms, HeroCoders will delete the User Content.
19. General Provisions
19.1. Relationship of the Parties: The Parties are independent parties under the Terms and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither Party intends the Terms to benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Parties. The Terms are not intended to create a third-party beneficiary of any kind (please note however that the Downloadable Software with Perpetual Licensing and the Subscription-Based Downloadable Software are provided by Okapya Software Solutions Inc. through HeroCoders as an exclusive reseller). You must not represent to any third party that it has any right to bind us in any manner and you will not make any representations or warranties on behalf of us.
19.2. Severability: If any provision of the Terms, or any part of such provision, is found to be invalid, illegal or unenforceable under applicable law, it will be (to the minimum extent necessary) replaced by a valid, legal and enforceable provision the effect of which comes as close as possible to the intended economic effect of the invalid, illegal or unenforceable provision, so that the Terms will otherwise remain in full force and effect and enforceable.
19.3. No Waiver: A Party’s failure or delay in enforcing any provision of the Terms will not operate as a waiver of the right to enforce that provision or any other provision of the Terms at any time. A waiver of any provision of the Terms must be in writing, specify the provision to be waived and signed by the Party agreeing to the waiver.
19.4. Force Majeure: A “Force Majeure” event means any event beyond a Party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s one), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, shortage of supply or delay in delivery by our vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or subcontractors. Neither Party is liable for delays or failures to perform any of its obligations under the Terms to the extent caused by a Force Majeure event.
19.5. Notices: Unless otherwise specified in the Terms, any notice given under or in relation to the Terms must be in writing and delivered by email: (i) if to us, at: support@herocoders.com; (ii) if to you, at the email address provided by you when purchasing the App. You are responsible to keep your email address current, and you will be deemed to have received any email sent to the last known email address we have on record for you. Please note that if you use the Free App, we may not have your contact information, thus we will use commercially reasonable efforts to notify you respectively through the Free App (if possible) which will constitute a valid notification.
19.6. Subcontractors: HeroCoders may use subcontractors in the performance of its obligations under the Terms. The list of our subcontractors which also constitute personal data subprocessors, may be found at the Website and at our Trust Center.
19.7. Assignment: You may not sublicense, assign or transfer any rights or obligations under the Terms without our prior written consent. Any attempt by you to sublicense, assign or transfer any of your rights, duties or obligations under the Terms, whether directly or indirectly, by merger, acquisition or change of control, will be null and void. HeroCoders reserve the right to assign or transfer the Terms, in whole or in part, without restriction.
19.8. Governing Law: The Terms, and any dispute or claim arising out of or in connection with it or its subject-matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the Republic of Poland and shall fall under the jurisdiction of courts of Poland with the exclusion of provisions of private international law to the greatest extent possible.
19.9. Disputes: Any disputes concerning the Terms shall be settled amicably. If it is not possible to settle the dispute amicably within 30 (thirty) days from the date of delivery of the notification of the dispute to the other Party, then the dispute concerning the Terms shall be resolved by a Polish common court competent for the business seat of HeroCoders.
19.10. Entire Agreement: The Terms, the Data Processing Agreement, and the Service Level Agreement (as of our Support Services), constitute the entire agreement and understanding between you and HeroCoders in relation to the use of the Services and supersede all oral or written proposals, and all communications between the Parties relating to the subject-matter of the Terms. Other important information, especially regarding our Privacy Policy, Security Statement, Technical and Organizational Measures, Personal Data Access and Subprocessors, may be found at the Website.
19.11. Changes to the Terms: HeroCoders reserves the right, at its sole discretion, to change, modify, update, add, or remove portions of the Terms at any time, for any reason, and without liability to you, any other user or any third party, with the changes becoming effective at least thirty (30) days after notice (unless HeroCoders specifies a shorter notice period due to the immaterial or beneficial to you nature of such modification). We will use commercially reasonable efforts to notify you of the changes by posting an updated version of the Terms at our Website (we will note the effective date at the top of this page) and by posting an update (legal notification) at our Trust Center which contains a mechanism to subscribe to notifications about updates. Please check the Terms, our Trust Center or your email (in case you have subscribed to the mentioned notifications) periodically for any changes. If you do not agree to the changes, your sole remedy is to terminate the Terms prior to the date on which the changes are to take effect by withdrawing from using all of the Services. If you terminate the Terms according to the preceding sentence, the changes will not apply to you and - provided that the changes to the Terms were material - you may file for a refund for the remaining subscription period via the respective Partner Platform. Otherwise, your continuing use of the Services following any revisions or changes to the Terms will constitute your irrevocable acceptance of any and all such revisions and changes.
19.12. Survival: These sections survive expiration or termination of the Terms: 5 (Restrictions), 10 (Fees and Payments), 11 (Warranties, Acknowledgements, and Warranty Limitations), 12 (Disclaimer of Warranties), 13 (Publicity Rights), 15 (Confidentiality), 16 (Limitation of Liability), 17 (Indemnity), 19 (General Provisions).
20. Contact Details
You can find additional information at our Trust Center. For any questions regarding the Terms, claims, complaints or comments, please email us at: support@herocoders.com or contact our Help Center.
