Date: August 2019
IMPORTANT – READ CAREFULLY:
If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version shall prevail. The User should keep a copy of this ToU for his records. The latest version of this ToU appears in its entirety on https://upcue.com/terms-of-use. UPCUE reserves the right, in its sole free discretion, to make reasonable amendments to this Agreement from time to time provided that disputes arising hereunder will be resolved in accordance with the Terms of the Agreement in effect at the time the dispute arose. UPCUE will inform the User after each amendment in due way and the User should review the published Agreement from time to time to become aware of changes. Material changes to these terms will be effective upon the User’s first use of the Software with actual knowledge of such change. Any use of the Software by the User after the amended Agreement becomes effective constitutes the User’s acceptance of the amended Agreement. If the User does not accept amendments made to this Agreement, then this Agreement will be immediately terminated pursuant to Sec. 12.
The User/Customer acknowledges that registration is required in order for the User/Customer to utilize the full benefits of the Software. If the User is not registered as the End User, the User has no right to access the software and the limited warranty in this ToU does not apply.
NO RENTAL OR COMMERCIAL HOSTING.
The Software is provided as SaaS for the User only. The User/Customer may only rent, lease, lend, or provide commercial hosting services with the Software upon UPCUE’s prior written consent.
DATA CAPTURE AND USE.
The User/Customer agrees that UPCUE may collect and utilize technical information gathered as part of the Software support services and SaaS provided to the User/Cutomser. Data captured in this form will only be used to improve UPCUE’s Products and/or provide customized services to the User/Customer and will not be disclosed or disseminated to third parties except in an anonymized form.
BACKUP OF DATA.
The setup of a functional hardware and software environment for use of the Software shall be solely in the User’s responsibility. The same shall apply to regular data backup.
NO AUTOMATED USE.
A subscription for the SaaS may not be shared or used concurrently on different Devices, nor to support multiple Users or operational requests as indicated above. As a result, the User may not use the SaaS in an automated, unattended, non-interactive server application or component (including ASP) where: (i) multiple User requests from different Users are queued for processing; or (ii) multiple requests from one User are queued for processing but acting against content created or edited by other Users.
RESTRICTIONS ON CERTAIN SOFTWARE.
Software identified as free trial, demo, evaluation, and Beta versions may not be used for any purpose other than the User’s/Customer’s testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both the User/Customer and UPCUE.
If the User/Customers breaches the terms and conditions of this ToU, UPCUE may terminate this ToU without prejudicing any of its other rights. In such event the User must cease use of the Software with immediate effect. Sections 1, 4, 13, 14, 15, 16, 18, 19, and 20 specifically survive termination.
HIGH RISK ACTIVITIES.
The Software is not fault tolerant and is not designed, manufactured, or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (the “High Risk Activities”). Accordingly, UPCUE and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
LIMITATION OF LIABILITY.
Notwithstanding the legal nature of the relevant claim, the following shall apply to the User’s/Customer’s damage claims and claims for expenses incurred in vain (“Ersatz vergeblicher Aufwendungen”):
15.1. Limitations of liability: UPCUE shall be liable for any of the User’s/Customer’s damages resulting from gross negligent or intentional behavior of UPCUE, which are due to culpable injury to life, body, and health, which arise due to the assumption of a guarantee or according to the Product Liability Act. In all other cases UPCUE’ liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations which fulfillments allow the proper execution of the agreement in the first place and where the User/Customer may rely on the compliance with these obligations. UPCUE’ liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to the User’s/Customer’s obligation for regular data backups according to Sec. 10 of this ToU.
15.2. Foreseeable damages: UPCUE’ liability in case of negligent infringement of material obligations of the agreement by UPCUE shall be limited to foreseeable damages which are typical for this type of contract.
15.3. Exclusion: A strict liability of UPCUE for defects existing at the time of entering into this ToU pursuant to section 536 a para. 1, alternative 1 German Civil Code (BGB) is hereby expressly excluded.
15.4. Statue of limitation: All claims against UPCUE for damages shall be statute barred 6 months after delivery, in case the User is an Entrepreneur. This shall not apply to any claims in tort.
15.5. Further limitation: If UPCUE has provided the User/Customer with the SaaS against no payment whatsoever, UPCUE’s liability is further limited by section 599 BGB to damages resulting from gross negligent or intentional behavior of UPCUE.
15.6. Excluded liability: UPCUE has no liability for any loss, damage, or misappropriation of data information provided by the User/Customer under any circumstances or for any consequences related to changes, restrictions, suspensions, or termination of the Services or the Agreement or caused by User Generated Content.
15.7. Representatives: The foregoing limitations of liability also apply with regard to all UPCUE’ representatives, including but not limited to its directors, legal representatives, employees, and other vicarious agents.
RESTRICTIONS IN USE.
16.1. Unauthorized access: The User/Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and Data, and notify UPCUE promptly of any such unauthorized access or use and use Services and Data only in accordance with this Agreement, Documentation and applicable laws and government regulations.
16.2. Restrictions in use: The User/Customer will not (i) make any Service or Data available to, or use any Service or Data for the benefit of, anyone other than the User or Users or Customer, unless expressly stated otherwise, (ii) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Data, or include any Service or Content in a service bureau or outsourcing offering, (iii) use a Service to capture and store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (v) attempt to gain unauthorized access to any Service or Data or its related systems or networks, (vi) permit direct or indirect access to or use of any Service or Data in a way that circumvents a contractual usage limit, or use any of UPCUE Services to access or use any of UPCUE’ intellectual property except as permitted under this Agreement, (vii) copy a Service or any part, feature, function or user interface thereof, (viii) copy Data except as permitted herein, (ix) frame or mirror any part of any Service or Data, other than framing on the User’s own intranets or otherwise for the User’s own internal business purposes, (x) access any Service or Data in order to build a competitive product or service or (xi) reverse engineer any Service (to the extent such restriction is permitted by law) or (l) enter any real account data and/or passwords in a demo-session. Any use of the Services in breach of this Agreement, by the User or Users or Customer that in UPCUE’ judgment threatens the security, integrity or availability of UPCUE Services, may result in UPCUE’ immediate suspension of the Services, notwithstanding that UPCUE will use commercially reasonable efforts to provide the User/Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
INTEGRATION OF 3RD PARTY ACCOUNTS
Certain features of the SaaS allow User/Customer to integrate his account with third party services (the “Third Party Accounts”) like e.g. Gmail, Salesforce, MS Dynamics, LinkedIn etc. via Application Programming Interface (the“API”) provided by such third party. By enabling those features, User/Customer grants to UPCUE access to data stored in Third Party Accounts provided via API and certain rights to use functions of Third Party Accounts provided via API to enable UPCUE to identify relevant data to be stored within the SaaS or to be processed in order to provide the SaaS.
STATUTORY CONSUMER RIGHTS.
Nothing in this ToU is meant to contravene statutory rights that consumers may have pursuant to local law.
DISPUTE RESOLUTION AND GOVERNING LAW.
19.1. Dispute resolution: Let’s Try To Sort Things Out First. UPCUE wants to address the User’s/Customer’s concerns without needing a formal legal case. Before filing a claim against UPCUE, the User/Customer agrees to try to resolve the dispute informally by contacting firstname.lastname@example.org . UPCUE will try to resolve the dispute informally by contacting the User/Customer via email. If a dispute is not resolved within 20 working days of submission, the User/Customer or UPCUE may bring a formal proceeding.
19.2. Applicable law, jurisdiction: Unless expressly prohibited by local law, the Agreement and warranties are controlled by and construed under the laws of Germany, notwithstanding any conflicts of law provisions; and the German courts in Munich shall have exclusive jurisdiction over any claim arising under the Agreement or warranties. The UN Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
The provisions of this ToU shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement.
Should the User/Customer have any questions regarding this Agreement, please contact the UPCUE dedicated customer support manager serving the User/Customer, or write to: Botconnect GmbH, Legal, Wins Str. 26, D-10405 Berlin, Germany.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of UPCUE includes non-public information regarding features, functionality and performance of the SaaS. Proprietary Information of User/Customer includes non-public data provided by User/Customer to UPCUE to enable the provision of the SaaS (“Data”,”Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the SaaS or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. User/Customer shall own all right, title and interest in and to the User/Customer Data.