Terms of Service

 

THIS AGREEMENT GOVERNS YOUR USE OF UPSOLVER’S PROPRIETARY DATA LAKE PLATFORM SOLUTION AND RELATED SERVICES (COLLECTIVELY, THE “PLATFORM SERVICES” OR “SERVICES”). BY USING THE PLATFORM SERVICES, YOU WILL HAVE EXPRESSLY AGREED TO THE BINDING TERMS AND CONDITIONS SET FORTH BELOW IN THIS AGREEMENT (WHICH MAY BE UPDATED FROM TIME TO TIME IN UPSOLVER’S SOLE DISCRETION). IF YOU DO NOT AGREE TO THIS AGREEMENT YOU MUST NOT USE THE PLATFORM SERVICES. EACH OF UPSOLVER AND YOU MAY BE REFERRED HEREIN AS A “PARTY​” AND COLLECTIVELY AS THE “PARTIES”.

THE AGREEMENT

  1. Definitions
    • “Account” means a unique account established by Customer to enable its Authorized Users to access and use the Platform Services.

“Account Administrator” is an Authorized User who is assigned and expressly authorized by Customer as its agent to manage Customer’s Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, provide usage and performance reports, manage templates, assist in third-party product integrations, and to receive privacy disclosures. Customer may appoint an employee or a third-party business partner or contractor to act as its Account Administrator and may change its designation at any time by sending an email to rnd@upsolver.com.

  • “Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
  • “Agreement” – means these terms of services (as the same may be updated from time to time by Upsolver and posted on www.upsolver.com) as well as any Order Forms which have been executed between the Parties or was otherwise formally accepted by Upsolver.
  • “Applicable Law” – means any applicable administrative, judicial, or legislative code, finding, law, interpretation, ordinance, policy statement, proclamation, regulation, requirement, rule, statute, or writ of any Authority or the common law.
  • “Authorized User” – means an employee or service provider who is authorized by the Customer to access and use the Platform Services solely on Customer’s behalf. If the Authorized User is not an employee of Customer, use of the Platform Services will be allowed only if the user is under confidentiality obligations with Customer at least as restrictive as those in this Agreement and is accessing or using the Platform Services solely to support Customer’s and/or Customer Affiliates’ internal business purposes.
  • “Confidential Information” means – (a) the terms of this Agreement and any Order Form entered into by the Parties; (b) for Upsolver and its Affiliates, the Platform Services and associated Documentation; (c) for Customer and its Affiliates, the Customer Data; (d) any other information of a Party or its Affiliates that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party, including its Affiliates, receiving Confidential Information (“Recipient”) (and, in the case of oral disclosures, summarized in writing and delivered to the Recipient within thirty (30) days of the initial disclosure), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing Party; and (d) the specific terms and conditions of this Agreement between the Parties. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
  • “Customer” (also referred to as “you”, or “yourself”) – means legal entity or individual accepting the Agreement and agreeing to be bound by the terms and conditions set forth hereunder.
  • “Customer Data” – means any content, materials, data and information that Customer or its Authorized Users enter into the Platform Services, including, but not limited to, any Customer personal data. Customer Data does not include any component of the Platform Services or materials provided by or on behalf of Upsolver.
  • “Deployment” – means the deployment of Upsolver’s Platform Services on servers according to the Customer’s preference and the specific Plan limitations. Deployment can occur within Upsolver’s cloud account, Customer’s cloud account or Customer’s data center, all subject to each applicable Plan limitations.  The specific mode of Deployment appliable to a Customer’s use of the Platform Services will be identified within each Order Form accepted by Customer and Upsolver.
  • “Documentation” – means Upsolver’s then-current technical and functional documentation for the Platform Services as made generally available by Upsolver.
  • “Fees” – means the applicable fees due Upsolver for use of the Platform Services which shall be calculated according to the terms set forth in each Order Form accepted by Upsolver and you.
  • “Indemnified Party” – means, as the case may be, the Party (whether Upsolver or Customer) being indemnified for a third-party claim, including its employees, directors, contractors, agents, and representatives.
  • “Intellectual Property” –means all concepts, inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, publicity rights, names, likenesses, know-how, ideas (whether or not protected under trade secret laws) and all other subject matter protected under patent (or which is not patented, but is subject matter that is protected under patent law), copyright, mask work, trademark, trade secret, or other laws, whether existing now or in the future, whether statutory or common law, in any jurisdiction in the world, for all media now known or later developed, including all new or useful art, combinations, discoveries, formulae, algorithms, specifications, manufacturing techniques, technical developments, systems, computer architecture, artwork, software, programming, applets, scripts, designs, processes and methods of doing business.

 

  • “Order Form” – means each order form or statement of work that is provided by Upsolver which sets forth the pricing and options of the Platform Services selected by Customer.
  • “Payment Method” – means (other than with respect to free version) either one or a combination of the methods set forth under the applicable Order Form or pricing page.
  • “Platform” – means Upsolver’s Data Lake Platform.
  • “Plan” – the specific Platform Services use model elected by the Customer and expressly set forth in each Order Form accepted by Upsolver and Customer.
  • “Professional Services” means any integration, consulting, architecture, training, transition, configuration, administration, and similar ancillary Platform Services that are set forth in an Order Form.
  • “Provisioning Data” – means any data generated by the Platform Services, excluding Customer Data (e.g., error logs, usage statistics, billing information, objects created in Upsolver’s platform etc.).
  • “Term” – as set forth in Section 9 hereof.
  • “Upsolver” (also referred to as “we”, “us”, or “our”) – means Upsolver Data Inc. unless another affiliate entity is expressly named on an Order Form.
  • “Upsolver Unit” – means a unit of processing services provided by Upsolver, billed on a per-minute usage basis. Upsolver fees will be calculated according to consumption of the applicable Upsolver Units. Since Upsolver supports several instance types, the Upsolver Units will vary in price depending upon the specific form of instance (i.e., one instance hour may result in a more expensive Upsolver Unit than other instances).
  • “Upsolver Unit Price” – means the appliable price for each Upsolver Unit. Pricing will vary based on to the term and size of purchase from Upsolver.
  1. General
    • Each Party hereby represents and warrants to the other Party that: (i) it has full power and authority to enter into and perform its obligations under this Agreement; (ii) the acceptance, delivery and performance of this Agreement is duly authorized; (iii) it’s acceptance of this Agreement will not conflict with any other agreement or arrangement to which it is a party; and (iv) its acceptance, delivery and performance hereunder will not violate any Applicable Law.
    • The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint venture or employee of the other.
    • Each Order Form that is accepted by the Parties shall constitute a separate agreement which expressly incorporates the terms and provisions of this Agreement. The provisions of this Agreement shall control over any conflicting provisions in an Order Form, except to the extent the Order Form indicates the clear intent of the Parties that such conflicting term prevails over a term or condition of this Agreement.
    • The Parties acknowledge and agree that no provision contained herein with respect to which an issue of interpretation or construction arises shall be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but shall be construed according to the intent of the Parties as evidenced by the entire Agreement.
  2. Usage Rights; Access rights
    • Subject to your compliance with the terms of this Agreement including payment of the Fees (to the extent applicable), Upsolver hereby grants to you a limited, non-exclusive, revocable, non-transferable, and non-sub licensable right to access and use the Platform Services solely during the Term. The use of the Platform Services shall be (i) strictly limited to your Authorized Users; (ii) solely for your personal use or your internal business purposes; and (iii) in accordance with the other requirements of this Agreement and the Platform’s Documentation available from Upsolver (as may be updated from time to time).
    • Customer will ensure that its Affiliates and all Authorized Users using the Platform Services under its Account comply with all of Customer’s obligations under this Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
    • Notwithstanding anything hereunder to the contrary, Upsolver expressly reserves the right to modify, limit the functionalities and/or discontinue any of the Platform Services at any given time, and will endeavor to provide Customer with 7 days’ prior notice of any such change(s).
    • If you are extended a limited period free account to use the Platform Services at no cost, your free account shall terminate at the end of the offer period (and in the absence of a clearly stated end date, 30 days from the Effective Date of this Agreement). You shall not longer be permitted to continue using the Platform Services at the end of your offer period unless you agree to become a paying customer of Upsolver by converting your free Account to a paid Account and by provide Upsolver with your billing information.
    • Any Professional Services that you wish to commission from Upsolver shall be documented in a separate Order Form and will be subject to the terms and conditions agreed to by the Parties in such Order Form. Upsolver shall not render any Professional Services until such time as an Order Form therefor is finalized by the Parties.
  3. Restrictions
    • Except as expressly provided herein, Customer shall not, and shall not permit its Authorized Users or others under its control, to do any of the following with respect to the Platform Services:
      • use the Platform Services, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds Customer’s authorized use or usage metrics set forth in this Agreement, including the applicable Order Form;

4.1.2           license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Platform Services available for access by third parties except as otherwise expressly provided in this Agreement;

  • access or use the Platform Services for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Platform Services, or (ii) allowing access to its Account by a direct competitor of Upsolver;
  • reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Platform Services or technologies, unless and then only to the extent expressly permitted by applicable law, without consent;
  • use the Platform Services in a way that: (i) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene;
  • fail to use commercially reasonable efforts to not interfere with or disrupt the integrity, operation, or performance of the Platform Services or interfere with the use or enjoyment of it by others;
  • use the Platform Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the Platform Cloud Service or any host, network, or account related thereto or use any aspect of the Platform Services components other than those specifically identified in an Order Form, even if technically possible;
  • breach or attempt to breach the security of the Platform or identify any security vulnerabilities thereof, or to interfere with, circumvent, manipulate, impair or disrupt the operation, or the functionality of the Platform.
  • use, or allow the use of, the Platform Services in violation of Section 14.3 (Trade Restrictions).
  • Upsolver may suspend any use of the Platform Services or remove or disable any Account or content that Upsolver reasonably and in good faith believes violates this Agreement. Upsolver will use commercially reasonable efforts to notify Customer prior to any such suspension or disablement, unless Upsolver reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or (b) it is necessary to delay notice in order to prevent imminent harm to the Platform Services or a third party. Under circumstances where notice is delayed, Upsolver will provide notice if and when the related restrictions in the previous sentence no longer apply.
  1. Customer’s Data; Security
    • Customer is responsible for Customer Data (including Customer personal data) as entered into, supplied or used by Customer and its Authorized Users in connection with the Platform Services. Further, Customer is solely responsible for determining the suitability of the Platform Services for Customer’s business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the Platform Services. Customer grants to Upsolver the non-exclusive right to process Customer Data (including personal data) in accordance with the applicable data protection provisions and the technical and organizational measures referred to in a data processing agreement entered into by the Parties, for the sole purpose of and only to the extent necessary for Upsolver: (a) to provide the Platform Services; (b) to verify Customer’s compliance with the restrictions set forth in Section 2.2 (Restrictions) if Upsolver has a reasonable belief of Customer’s non-compliance; and (c) as otherwise set forth in this Agreement. Based on the foregoing, Customer represents, warrants and covenants to Upsolver that it has obtained all permissions and consents (including consent of data subjects and Authorized Users), as may be necessary under applicable law (including privacy laws), any contract and industry standards, in order to allow Upsolver to lawfully access and process the aforementioned items in the manners and for the purposes contemplated by this Agreement.
    • Upsolver will use commercially reasonable industry standard security technologies in providing the Platform Services. Upsolver has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, to preserve the security, integrity, and confidentiality of Customer Data and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data.
    • Customer agrees that Upsolver may collect, use, and disclose quantitative data derived from the use of the Platform Services for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and deidentified form only and will not identify Customer, its Authorized Users, Customer Data, or any third parties utilizing the Platform Services.
  2. Fees and Expenses
    • In consideration for the Platform Service provided by Upsolver, Customer shall pay Upsolver all of the fees set forth in the Order Form (the “Subscription Fee”) (plus any applicable taxes). If the Subscription Fee is not paid to Upsolver in a timely manner according to the Order Form, Customer will be deemed in breach of this Agreement, entitling Upsolver to suspend or terminate the provision of the Platform Services until such time as Upsolver is paid all past due amounts from Customer..  In the absence of payment terms in any Order Form, all Subscription Fee shall be due and payable within 30 days from the date of Upsolver’s invoice.  All invoiced fees will be denominated in U.S. dollars
    • Upon execution by Customer and Upsolver, each Order Form is non-cancellable and non-refundable except as provided in this Agreement, and the applicable Term as set forth in the Order Form for the Platform Services is a continuous and non-divisible commitment for the full duration of the Term regardless of any invoice schedule. Customer may withhold from payment any charge or amount disputed by Customer in good faith pending resolution of such dispute, provided that Customer: (i) notifies Upsolver of the dispute prior to the date such payment is due, specifying in such notice (A) the amount in dispute, and (B) the reason for the dispute set out in sufficient detail to facilitate investigation by Upsolver and resolution by the Parties; (ii) makes timely payment of all undisputed charges and amounts; (iii) works diligently with Upsolver to resolve the dispute promptly; and (iv) pays all amounts that are determined to be payable by resolution of the dispute (by adversarial proceedings, agreement or otherwise) within ten (10) days following such resolution.
    • If Customer deploys Upsolver’s Platform Services on its own cloud account or data center, Customer will bare all infrastructure and/or provider costs related to its cloud account or data center.
    • To the extent Upsolver Units shall not be consumed until their applicable expiration date set under the Order Form, such units will expire and Customer shall not be entitled to any credit and/or refund in connection with such Upsolver Units.
    • Upsolver reserves the right to assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. Customer will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by Upsolver to collect any amounts that are not paid when due. If Customer fails to timely pay any amounts due under this Agreement, then without limitation of any of its other rights or remedies, Upsolver may suspend performance of those Platform Services until Upsolver receives all past due amounts from Customer.
    • All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Platform Services. Taxes shall not be deducted from the payments to Upsolver, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Platform receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer claims tax exempt status for amounts due under this Agreement, it shall provide Upsolver with a valid tax exemption certificate (authorized by the applicable governmental authority) to avoid application of Taxes to Customer’s invoice. Each Party is responsible for and shall bear Taxes imposed on its net income. The Parties’ obligations under this Section 6.6 shall survive the termination or expiration of this Agreement. If Upsolver is required to invoice or collect Taxes associated with Customer’s purchase of, payment for, access to or use of the Platform Services, Upsolver will issue an invoice to Customer including the amount of those Taxes, itemized where required by law.
    • During and after the Term of this Agreement, Recipient will: (a) use the Confidential Information of the other Party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its and its Affiliates’ respective officers, directors, employees, agents, consultants, subcontractors attorneys, auditors, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
    • If Recipient is required by law to disclose Confidential Information of the other Party or the terms of this Agreement, Recipient will give prompt written notice to the other Party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
    • Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
    • Recipient acknowledges that any actual or threatened breach of this Section 7 (Confidentiality) may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing Party to the disclosure, the Recipient, in the case of a breach of this Section 7, has the burden of proving that the disclosing Party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 7.
  4. Ownership
    • As between the Parties, all rights, title and interest, including copyrights, trademarks, trade names, trade secrets and any other intellectual property rights, as well as any goodwill associated therewith, in and to the (i) Platform, the Platform Services or any part thereof, including without limitation computer code, graphic design, layout and the user interfaces of the Platform (and also including without limitation in any other information derived from the Platform which is not the Customer Data, such as without limitation, Provisioning Data), and (ii) all derivatives, improvements, updates, enhancements and variations of the foregoing, so long as they are not based on Customer’s confidential information and/or the Customer Data, are and will remain at all times, the sole and exclusive property of Upsolver. Other than the limited use rights expressly granted by this Agreement, this Agreement does not grant, sell, transfer, or assign to Customer or to any Authorized User, any rights, title or interest in or to the Platform or the underlying Intellectual Property appurtenant thereto.
    • Customer is not required to provide any feedback or commentary with respect to the Platform or otherwise to Upsolver, but to the extent Customer provides feedback about the features and functionality of the Platform, Customer transfers to Upsolver all right, title and interest that Customer may have in and to such feedback, provided that Customer makes no representations or warranties regarding the feedback, including but not limited to the ownership or rights in such feedback.
    • Notwithstanding the foregoing and for the avoidance of any doubt, you will retain any and all Intellectual Property rights, and any goodwill associated therewith, in and to your Customer Data.
    • Upsolver encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Platform Services and related resources (“Feedback”). To the extent Customer provides Feedback, Customer grants to Upsolver a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 14.2), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the Platform Services) without restriction; provided that such Feedback does not identify Customer, its Affiliates, or Authorized Users, or include any Customer Data without Customer’s prior written consent.
  5. Term and Termination
    • The term of an Order Form is the period of time, including all renewals thereto, that begins on the Order Form Start Date and, unless terminated sooner as provided herein, will continue until the Order Form End Date, both dates as specified on the Order Form (the “Term”). In the case of an Order Form for Professional Services, if no end date is specified in the Order Form, then the Order Form shall expire upon completion of the Professional Services or early termination as permitted by this Agreement. The term of this Agreement shall continue as long as an Order Form referencing this Agreement remains valid and in effect. Prior to the Order Form Start Date, Upsolver may, upon mutual agreement, start providing Professional Services and/or provide Customer access to the Platform Services, which will be governed by this Agreement. Termination or expiration of any Order Form shall leave other Order Forms unaffected and in full force and effect.
    • If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default in performance is cured within thirty (30) days after the defaulting Party receives notice thereof. Either Party may terminate this Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.
    • Upon termination of this Agreement for any reason: (i) Customer will pay to Upsolver any amounts that have accrued before, and remain unpaid as of, the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Platform Services will immediately terminate; (d) Upsolver’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except any such services that are expressly to be provided following the expiration or termination of this Agreement; and (e) the Parties’ rights and obligations under Sections 7, 8, 9, 10, 11, 12, 13 and 14 will survive.
  6. Support and Maintenance
    • Upsolver warrants that during the applicable Term, the Platform Services, when used as authorized under this Agreement, will perform substantially in conformance with the Documentation associated with the applicable Platform Services. Customer’s sole and exclusive remedy for any breach of this warranty by Upsolver is for Upsolver to repair or replace the affected Platform Services to make them conform, or, if Upsolver determines that the foregoing remedy is not commercially reasonable, then either Party may terminate this Agreement. Upsolver will respond to questions, problems and inquiries deemed by Upsolver to be of a critical nature, whenever submitted, as soon as practicable. Without limiting the generality of the foregoing, Upsolver further commits to Customer that during the Term, Upsolver will carry out commercially reasonable efforts to provide Customer with fixes for Platform Services malfunctions that you or other customers have reported to Upsolver, provided, that, (i) Upsolver is able to to reproduce the malfunction in question, the severity of the malfunction, and the magnitude of its effect, and (ii) Customer cooperates with Upsolver to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as Upsolver may reasonably request from time to time during the Term.
    • As set forth in Section 3 hereof, Upsolver may modify, adapt, improve, or enhance the Platform Services, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide Customer with advance notice thereof.
  7. Indemnity.
    • By Customer – Customer will indemnify Upsolver, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any Claim (as defined below) to the extent arising from or related to: (a) use of the Platform Services by Customer or its Account Administrator or Authorized Users in violation of this Agreement or Applicable Law; (b) any breach by Customer of its obligations under Section 2.2 or Section 7; or (c) the nature and content of all Customer Data processed by the Platform Services.
    • By Upsolver – Upsolver will indemnify Customer, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any actual or threatened: (a) third-party claim; (b) third-party legal action; or (c) administrative agency action or proceeding (“Claim”) to the extent arising from or related to: (i) any alleged breach by Upsolver of specified security safeguards related to the Platform Services that results in the breach of its confidentiality obligations in Section 7; and (ii) any alleged infringement of any third-party intellectual property rights by the Platform Services as provided by Upsolver, or the Indemnified Party’s use thereof when used as authorized under this Agreement. The foregoing indemnity obligation of Upsolver will not apply to claims to the extent arising from: (i) the combination of the Platform Services with other products or services not supplied by or on behalf of Upsolver where such claim would not have arisen from the use of the Platform Services standing alone, (ii) compliance by Upsolver with your written specifications, where such claim would not have arisen from use of the Platform Services without Upsolver’s compliance of your written specifications, or (iii) any modification of the Platform Services not made by or on behalf of Upsolver, where such claim would not have arisen but for said modification.
    • Infringement Remedy – If Customer is enjoined or otherwise prohibited from using any of the Platform Services or a portion thereof based on a Claim covered by Upsolver’s indemnification obligations under Section 11.2 above, then Upsolver will, at its sole expense and option, either: (a) obtain for Customer the right to use the allegedly infringing portions of the Platform Services; (b) modify the allegedly infringing portions of the Platform Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Platform Services with non-infringing items of substantially similar functionality. If Upsolver determines that the foregoing remedies are not commercially reasonable, then either Party may terminate this Agreement, and in such case, Upsolver will provide a prorated refund to Customer for any prepaid fees received by Upsolver under this Agreement that correspond to the unused portion of the Term. Without limiting Upsolver’s obligation to indemnify Customer as set forth in Section 11.2 hereof, the remedy set out in this Section 11.3 is Customer’s sole and exclusive remedy for any actual or alleged infringement by Upsolver of any third-party Intellectual Property rights in the event that Customer is enjoined or otherwise prohibited from using any of the Platform Services or a portion thereof based on a Claim covered by Upsolver’s indemnification obligations under Section 11.2.
    • As a condition to the Parties’ respective indemnification obligations hereunder, the indemnified Party shall promptly notify the indemnifying Party of any claim subject to indemnification; provided that the indemnified Party’s failure to do so shall not affect the indemnifying Party’s obligations hereunder, except to the extent that the indemnified Party’s failure to promptly notify the indemnifying Party materially delays or prejudices the indemnifying party’s ability to defend the claim. The indemnifying Party will have the right to solely defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying Party deems appropriate, provided the indemnifying Party shall not enter into any settlement without the indemnified Party’s prior written consent.
  8. Disclaimer of Warranty and Limitation of Liability
    • Except for the express representations and warranties stated in this Agreement, Upsolver: (a) makes no additional representation or warranty of any kind — whether express, implied in fact or by operation of law, or statutory — as to any matter whatsoever; (b) disclaims all implied warranties, including but not limited to merchantability, fitness for a particular purpose, and title; and (c) does not warrant that the Platform Services are or will be error-free or meet Customer’s requirements. Customer has no right to make or pass on any representation or warranty on behalf of Upsolver to any third party. Accordingly, the Platform Services are provided to you “as is” and “as available”. FURTHERMORE, ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE PLATFORM SERVICES, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY (I) ABOUT THE ACCURACY OR COMPLETENESS OF THE EXPECTED BUSINESS RESULTS, OUTCOME OR OPERATIONAL BENEFITS FROM UTILIZING THE PLATFORM SERVICES AND UPSOLVER HAS NO RESPONSIBILITY OR LIABILITY, REGARDING THE CUSTOMER’S RELIANCE UPON, OR USE OF, THE PLATFORM SERVICES, THE CUSTOMER’S ACTIONS OR OMISSIONS IN CONNECTION WITH THE PLATFORM SERVICES, OR ANY CONSEQUENCES RESULTING THEREFROM; (II) THAT THE PLATFORM SERVICES WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER; AND (III) THAT IT WILL ALWAYS BE AVAILABLE, FREE FROM ERRORS, OMISSIONS OR MALFUNCTIONS.
    • EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
    • EXCEPT FOR: (A) THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (THIRD-PARTY CLAIMS); (B) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) UPSOLVER’S RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (OR THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE PLATFORM SERVICE(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
  9. Governing Law and Venue.
    • This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of law principles. Any dispute, controversy or claim which may arise out of or in connection with this Agreement, shall be submitted to the sole and exclusive jurisdiction of the competent state or federal courts in the State of Delaware. Subject to the aforesaid, you and Upsolver, each hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens. To the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted shall not apply.
    • Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s Intellectual Property rights.
  10. Miscellaneous
    • Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, internet or cloud resources failure, infrastructure, hardware and software failure, network or computer equipment failures, pandemics telecommunication equipment failure, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or loss of or fluctuations in heat, light or air conditioning.
    • Assignment. You may not assign the Agreement without our prior written consent, which we shall not unreasonably withhold. Any purported assignment without our prior written consent is void. Each Party may assign this Agreement in its entirety, including all rights, duties, liabilities, performances, gathered Customer’s Data and obligations herein upon a merger, acquisition, change of control or the sale of all or substantially all of its equity or assets. By virtue of such assignment, the assignee assumes in the assigning Party’s stead, including all rights, duties, liabilities, performances and obligations hereunder, and the assigning Party is released therefrom.
    • Trade Restrictions. The Platform Services and the provision and any derivatives thereof are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories (“Trade Restrictions”). Based on the foregoing:
      • Each Party shall comply with all applicable Trade Restrictions. In addition, each Party represents that it is not a Restricted Party, nor is it owned or controlled by, or acting on behalf of any person or entity that is a Restricted Party. “Restricted Party” means any person or entity that is: (i) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (ii) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and EU Dual-Use Regulation EC 428/2009.

 

  • Customer acknowledges and agrees that it is solely responsible for complying with, and shall comply with, Trade Restrictions applicable to any of its own or its Affiliates’ or Authorized Users’ content or Customer Data transmitted through the Platform Services. Customer shall not and shall not permit any Authorized User to access, use, or make the Platform Services available to or by any Restricted Party or to or from within in a country or territory subject to comprehensive U.S. sanctions (currently including, but not limited to, Cuba, the Crimea region of the Ukraine, Iran, North Korea, and Syria).
  • Anti-Corruption. In connection with the services performed under this Agreement and Customer’s use of Upsolver products and services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
  • S. Government Rights. All Upsolver software (including the Platform Services) is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the Platform Services are acquired by or on behalf of a civilian agency, Upsolver provides the commercial computer software and/or commercial computer software Documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the Platform Services are acquired by or on behalf of any agency within the DOD, Upsolver provides the commercial computer software and/or commercial computer software Documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. Except as otherwise set forth in an applicable Service Schedule, this Section 13.8 (U.S. Government Rights) is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses U.S. Government rights in computer software or technical data.
  • Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between you and us concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended by Upsolver in its sole discretion, and any such update/amendment will become binding once the same is posted on the Upsolver website. Customer’s continued use of the Platform Services after a new version of the Agreement has been posted by Upsolver shall constitute the Customer’s express and irrevocable agreement and acceptance to such updated Agreement.
  • No waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of this Agreement. The waiver, by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

 

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As you do not make any payments for using the unpaid versions, we shall not have any liability for the use of the Platform Services or provide any warranty regarding the Platform Services. Otherwise, your sole remedy for any claim related to such use, will be to cease use of the Platform.

 

Last Updated: April 2021

 

 

 

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