Terms and Conditions
These Terms and Conditions (the “Agreement”) apply to and govern the use of Upsolver’s software-as-a-service platform (the “Platform”).
This is a binding agreement between the entity identified during registration to the Platform (the “Organization, “you” or “your”), and Upsolver Limited (“we”, “us”, “our” or the “Company”).
The individual signing-up to the Service for the entity confirms that they have the proper authority to legally bind the entity to this Agreement. They also confirm they agree, on behalf of that entity, to be contractually bound by this Agreement.
You must ensure that your employees, consultants and agents that you designate to use and deal with the Platform for your benefit fully comply with this Agreement. You are liable to us for all acts or omissions of those that use and deal with the Platform for your benefit, as though you yourself had performed those acts or omissions.
- “Authorized User” means the Organization's employees or service providers who are authorized by the Organization to access and use the Platform in accordance with the terms of this Agreement.
- “Documentation” means the documentation available on Upsolver’s website which describes the scope and functionality of the Platform and the use thereof, as may be updated from time to time by Upsolver.
- "Fees" means the fees, charges and payments set forth in section 5
- "Organization Data" mean any proprietary, confidential, or personal data, regarding or related to the Organization, its customers or employees, which Upsolver may be exposed to throughout the performance of this Agreement, or which may be generated or processed by the Platform in connection with the Organization’s use of the Platform, including the Output Data.
- "Output Data" means the various reports, analytics, recommendations, notices and other types of information and data that the Platform may generate and provide, whether through the Platform’s web-based interface, the Platform’s API or any generated output stream, file, database records or other.
- "Setup Date" means the date we set-up your fully operational (non-evaluation) account and provide you with your account login details.
- "Term" means the period of this Agreement as specified in section 7
- The term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase. All examples in the Agreement and all "e.g." and "such as" notations, indicate an illustration, by way of example only, of the preceding phrase, without limiting its generality.
Use of Platform and Output Data.
- Subject to the terms of this Agreement including payment of the Fees to us, we grant you a limited, non-exclusive, revocable, non-transferable, and non-sub licensable right, from the Setup Date and until termination of this Agreement, to use the Platform and the Output Data, as specified in the Documentation, strictly by yourself and your Authorized Users, for your internal business purposes only, under the use parameters of the subscription package selected upon registration.
- By agreeing to the terms of this Agreement, you also agree to grant Upsolver a non-exclusive, perpetual, irrevocable, non-transferable, and non-sub licensable right and license, to use the Organization Data in order to: (i) perform our services hereunder; and (ii) collect, use and analyze such data and information derived from your Organization Data, solely for internal use and improvement of the Platform, and developing new features and services. You will not be entitled to any remuneration from us, for our use of such Organization Data.
Data processing; Organization’s name, mark, logo and implementation information
- We will dedicate our best efforts, using no less than commercially standard measures, to maintain the confidentiality of the Organization Data that we are exposed to, and to prevent and refrain from, disclosure or use of such Organization Data for purposes other than the provision of the services to you and our performance and enforcement of this Agreement.
- The Organization represents and warrants that it has obtained all permissions and consents (including consent of data subjects and Users), as may be necessary under applicable law (including privacy laws), any contract or industry standards, in order to allow us to lawfully access and process the Organization Data in the manners and for the purposes contemplated by this Agreement.
- The Organization assumes sole and exclusive responsibility to carry out such actions as the Organization deems appropriate as a result of the Output Data. Upsolver has no responsibility or liability, regarding the Organization’s reliance upon, or use of, the Output Data, the Organization’s actions or omissions in connection with the Output Data, or any consequences resulting therefrom.
- Notwithstanding the above and the Confidentiality section below:
- Unless you notify us of your objection in writing (email being sufficient), we may use the Organization’s name, marks and logos on our website, to indicate that the Organization is a customer of Upsolver. We will adhere to any branding guidelines you inform us of in our use of the Organization’s name, marks and logos; and
- Subject to your prior, written consent (email being sufficient), Upsolver may use in its marketing materials the Organization’s name, marks and logos, as well as high level details of the Organization’s implementation of the Platform, in Upsolver’s marketing materials. We will adhere to any branding guidelines you inform us of in our use of the Organization’s name, marks and logos.
- In consideration for the rights granted to you under this Agreement, you will pay us, commencing from the Setup Date, all applicable Fees, in accordance with the packages, schemes and amounts presented to you upon registration. All Fees are quoted in US Dollars, unless expressly stated otherwise. As part of the Fees, you will be charged for storage on Upsolver's bucket on Amazon Web Services (AWS), on a back-to-back basis with charges imposed by AWS, as outlined on the following webpage: https://aws.amazon.com/s3/pricing/.
- We will charge you for the applicable Fees (if applicable), as they become due, using the payment method you provided upon registration, and according to the usage information documented in our systems, logs and records, which is final and non-contestable. You must keep the billing information you provided to us upon registration current, complete, and accurate, and notify us promptly in case of any change in your billing information.
- Payment methods are processed and handled through relevant third party payment processors. Payment methods are therefore subject to the terms and conditions of these third parties pursuant to your contractual relations with them. You acknowledge that the third parties processing any of the payment methods may charge you commission on their end of the transaction. We are not responsible for such commission, which is strictly within your contractual relations with the relevant payment processor.
- By registering to the Platform, you give your consent to purchasing a subscription to the Platform, in accordance with the packages, schemes and amounts presented to you upon registration, and to being billed for the applicable Fees, in addition to any applicable taxes (such as sales tax, value added tax or withholding tax), and any surcharges or commissions charged by the payment processor or your payment method.
- All amounts payable to Upsolver, pursuant to this Agreement, are exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. The Organization is responsible for the payment of all such applicable taxes or charges. In case needed, then as soon as possible following our request, you will provide us with the taxation documentation necessary for processing the Fees.
- Fees paid by the Organization are non-refundable. Except where Fees apply according to the scope of use made under the Organization’s Platform account, the Organization is responsible for paying all applicable Fees. Organization’s failure to settle any overdue Fee within thirty (30) calendar days of its original due date will constitute a material breach of the Agreement.
- We reserve the right to change the Fees payable for the services hereunder, from time to time, by providing a 30-day prior written notice. If you do not agree to such change of the Fees, either party reserves the right to terminate this Agreement pursuant to subsection 1 below.
- Except as expressly provided herein, you may not use, or have others use, or provide to third parties, access to use the Platform or any part thereof. You may not disassemble, de-compile, reverse engineer or create derivative works from the Platform or any part thereof. You may not use the Platform in order to develop, or create, or permit others to develop or create, a similar or competitive product or service. You may not perform or attempt to perform any of the following: (i) breach the security of the Platform, or identify any security vulnerabilities thereof; (ii) interfere with, circumvent, manipulate, impair or disrupt the operation, or the functionality of the Platform.
- YOU MAY NOT USE THE PLATFORM FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
- You shall ensure that all your Authorized Users comply with the terms of this Agreement, and shall be liable for any breach thereof by any of your Authorized Users. Without derogating from the generality of the foregoing, you must ensure that your Authorized Users do not perform, or attempt to perform, any of the prohibited activities described in this section 6. You will notify us immediately upon becoming aware of any, actual or suspected, unauthorized use of the Platform by your Authorized Users.
- We reserve the right to block and/or discontinue, without liability, the subscription of any customer that is in breach of the provisions of this Section 6.
Term and Termination
- This Agreement commences upon your acceptance of the Agreement during registration, and shall continue to be in full force and effect, until terminated for convenience by either party and subject to the other provisions of this Agreement concerning termination.
- In addition to the foregoing, either party may terminate this Agreement immediately: (a) in the event of a material breach of this Agreement by the other Party, where the breach remains uncured for fifteen (15) days following written notice thereof from the non-breaching party to the breaching party; or (b) if the terminating party is required to do so by law; or (c) if the other party (i) becomes or is declared insolvent or bankrupt, (ii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary), or (iii) makes an assignment for the benefit of creditors or takes or has taken against it any such other comparable action in any relevant jurisdiction.
- Upon termination of this Agreement:
- We may, in our discretion, terminate the Organization’s and its Authorized Users’ access to the Platform and delete the Organization Data stored in our systems;
- We will charge you for all then-outstanding Fees;
- The due date of all your then-pending payment obligations, pursuant to this Agreement will be accelerated and become immediately due; and
- You must cease any and all use of the Platform and cause all other Authorized Users of the Organization to cease any and all use of the Platform.
- Sections 4, 5, 6, 3, 8.3, 8.4 and 10 - 18 herein will survive any termination of this Agreement.
Platform quality; Platform modifications; Disclaimer of Warranty and Limitation of Liability
- We will endeavor to have the Platform operate properly. However, as Platform that relies on third party cloud resources, third party networks, continuous internet connectivity, infrastructure, hardware and software, forecasts and predictive algorithms, we do not guarantee that the Platform will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions. If we receive notice of any failure or malfunction, or if we become aware of them by ourselves, we will endeavor to regain the Platform's availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF OUR INTENTIONAL MISCONDUCT, WE, INCLUDING OUR EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON OUR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, ANY USE OF, OR THE INABILITY TO USE THE PLATFORM OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA, OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE OUTPUT DATA.THE TOTAL AND AGGREGATE LIABILITY OF UPSOLVER AND OUR EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON OUR BEHALF, FOR DIRECT DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, THE PLATFORM OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES YOU HAVE ACTUALLY PAID US IN THE SIX (6) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
- We may modify, adapt, improve, or enhance the Platform, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide you with notice thereof.
- ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE PLATFORM, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY ABOUT THE ACCURACY OR COMPLETENESS OF THE OUTPUT DATA, OR THE EXPECTED BUSINESS RESULTS, OUTCOME OR OPERATIONAL BENEFITS FROM UTILIZING THE OUTPUT DATA.
- THE PLATFORM IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY OR PERFORMANCE.
Support and maintenance
During the Term, we, either directly or with the assistance of third parties, will provide you technical support for questions, problems and inquiries regarding the Platform and the Output Data, during our Israeli business days and hours, and pursuant to the support scheme, hours and channels separately conveyed to you. We and the relevant third parties will endeavor to respond to support requests as soon as possible, and provide a reasonable resolution to your questions, problems or inquiries.
During the Term, we will endeavor to provide you with fixes for Platform malfunctions that you or other customers, have found or reported, considering, among others, our ability to reproduce the malfunction in question, the severity of the malfunction, and the magnitude of its effect. You agree to cooperate, and work closely with us, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.
Representations and Warranties.
By both parties – Each of the parties hereby warrants and represents to the other party that: (i) it has full power and authority to enter into and perform its obligations under this Agreement; (ii) the execution, delivery and performance of this Agreement was duly authorized; and (iii) it is an existing corporation, in good standing under the laws of the place of its incorporation.
By Customer – Customer hereby warrants and represents to Upsolver that it has any and all right and authority to provide the Organization Data to Upsolver in connection with the services hereunder and the use of the Platform, and such data does not infringe upon any third party right, including intellectual property right.
Intellectual Property. All rights, title and interest, including copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Platform or any part thereof, including computer code, graphic design, layout and the user interfaces of the Platform, and all derivatives, improvements, updates, enhancements and variations thereof (including all feedback relating to the use of the Platform by you), are and will remain at all times, owned by, or licensed, to Upsolver. Other than the limited use rights expressly granted by this Agreement, this Agreement does not grant, sell, transfer, or assign to you or to any Authorized User, a right, title or interest in or to patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses, or content with respect to, or in connection with, the Platform. Notwithstanding the foregoing and for the avoidance of any doubt, you will retain any and all rights, title and interest, including copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to your Organization Data and the Output Data.
By Customer - You agree to indemnify and hold harmless Upsolver and its directors, officers, employees, and subcontractors, upon our request and at your own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third party complaint, claim, plea, or demand (collectively, “Claim”) in connection with your breach of any provision or representation herein.
By Upsolver - Upsolver agrees to indemnify and hold you and your directors, officers, employees, and subcontractors harmless, at Upsolver’s own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any Claim that the Platform, when used within the scope of this Agreement, infringes any intellectual property rights of a third party. Upsolver agrees to indemnify you for any damages which are attributable to such claim finally awarded in a non-appealable or not stayed court or arbitration ruling. The foregoing indemnity obligation of Upsolver does not apply to claims to the extent arising from, if and as relevant: (i) the combination of the Platform with other products not supplied by or on behalf of Upsolver where such claim would not have arisen from the use of the Platform standing alone, (ii) compliance by Upsolver with your specifications, where such claim would not have arisen from the use of the Platform without compliance with your specifications, (iii) any modification of the Platform not made by or on behalf of Upsolver, where such claim would not have arisen but for such modification, or (iv) where you continue an activity where such claim would not have arisen but for such activity after having received and had a commercially reasonable time to install modifications from Upsolver that would have completely avoided the activity.
General – 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.
Confidentiality. Both parties acknowledge that the terms of this Agreement and any other information that a party hereunder (the “Recipient”) may be exposed to during the performance of this Agreement, constitute the confidential information (“Confidential Information”) of the other party (the “Disclosing Party”). The Recipient acknowledges that Confidential Information constitutes valuable proprietary information of the Disclosing Party, and that unauthorized disclosure or transfer of, or unauthorized provision of access to, such information is prohibited and could cause irreparable harm to the Disclosing Party. The Recipient may not disclose the Confidential Information and must hold such information in confidence using the same degree of care that it uses to prevent the unauthorized dissemination or publication of Recipient’s own confidential information but in no case less than a reasonable degree of care. the Recipient may only use such Information to the extent required to utilize the services under this Agreement. The Recipient will not disclose the Disclosing Party’s Confidential Information, except to its respective officers, directors, employees, agents, consultants and subcontractors, on a strict 'need to know' basis, provided they are bound by sufficient confidentiality obligations. The confidentiality and non-use obligations hereunder shall not apply to any information the Recipient can demonstrate: (i) is or becomes generally available to the public, through no breach by the Recipient of this Agreement; (ii) was lawfully in Recipient’s possession or known by Recipient prior to receipt from the other party, as evidenced by written records; (iii) was rightfully disclosed to the Recipient without restriction by a third party who is not bound by any confidentiality obligations with respect thereto; (iv) was developed by the Recipient without use of or reference to the Disclosing Party's confidential information; or (v) is required to be disclosed by law, provided that, if legally permitted to do so, the Recipient will give prompt prior notice of such requirement to the Disclosing Party, in order to allow the Disclosing Party to intervene and protect its interests in such information.
Governing Law and Venue. Regardless of your jurisdiction of incorporation, the jurisdiction where you engage in business or where you or your Authorized Users access or use the Platform from, this Agreement and your use of the Platform will be exclusively governed by and construed in accordance with the laws of the State of Israel, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than Israel. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or the Platform, shall be submitted to the sole and exclusive jurisdiction of the competent courts in the Tel Aviv district in Israel. Subject to the following sentence, 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. Notwithstanding the foregoing we may lodge a claim against you pursuant to the indemnity clause above, in any court adjudicating a third party claim against us.
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. To the greatest extent permissible by law, we may assign this Agreement in its entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to the you, to a third-party, solely upon a merger, acquisition, change of control or the sale of all or substantially all of our equity or assets. By virtue of such assignment, the assignee assumes in our stead, including all right, duties, liabilities, performances and obligations hereunder, and we are released therefrom.
Relationship of the parties. 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.
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 only in writing, signed by the duly authorized representatives of both parties.
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.