Terms of Use

TERMS OF USE

botconnect GmbH

Version: 1.0

Date: August 2019

IMPORTANT – READ CAREFULLY:

These Terms of Use (these“ToU”) for Software-as-a-Service (the“SaaS”) is a legal agreement between you (either an individual or a single entity –“You”or“the User”) and botconnect GmbH (“UPCUE”) for the use of UPCUE Software available at www.upcue.com (the“Software”).

ASSUMING YOU (i) HAVE STARTED A FREE TRIAL OF, (ii) PURCHASED A SUBSCRIPTION TO OR (iii) WERE INVITED TO THE USE OF THE SOFTWARE FROM UPCUE (“UCPUE”), CLICKING ON THE ‘I ACCEPT BUTTON’, ACCESSING OR USING THE SOFTWARE CONSTITUTES THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ACCEPT IT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN ANY EVENT UPCUE DOES NOT REQUIRE YOUR DECLARATION OF ACCEPTANCE TO BE RECEIVED AT ITS PREMISES. UPCUE IS WILLING TO PROVIDE THIS SOFTWARE AS A SERVICE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS TERMS OF USE AS WELL AS OUR PRIVACY POLICY AVAILABLE AT THE TIME OF YOUR ORDER (COLLECTIVELY, THE “AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN UPCUE IS UNWILLING TO PROVIDE THE SOFTWARE TO YOU AS A SERVICE AND YOU SHOULD CLICK THE ‘I DO NOT ACCEPT’ BUTTON, CLOSE THE BROWSER WINDOW/TAB, IMMEDIATELY CEASE AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE.

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.

DEFINITIONS

  1. Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  2. “Automatic Renewal” means a feature that provides for renewal of a license at the end of a license Term without the need of further notification.
  3. Bot” means a service that simulates conversation with users via Webinterface or Enterprise Messenger.
  4. UPCUE Product” means one of UPCUE’s proprietary products including the related marketing materials, Documentation, ToUs, and other supplemental materials.
  5. Customer” means the enterprise, corporation, business or entrepreneur according sec. 14 German Civil Code (§14 BGB), who is contracting legal entity as defined in the Order Form. UPCUE does not provide SaaS to consumers according to sec. 13 German Civil Code (§13 BGB).
  6. Customer data” or “User data” means any information entered in, transfered, uploaded to or in any other way generated by users, an enterprise and its user and stored uploaded, transferred, implemented or installed on UPCUE SaaS.
  7. “Data” means electronic data recorded or manipulated by the Hard- and Software and stored as part of the UPCUE Service.
  8. “To Decompile” means to reverse engineer, decompile, or disassemble the Software for the purpose of achieving interoperability with other computer programs according to section 69 e UrhG.
  9. “UPCUE Service” means services to be performed by UPCUE staff.
  10. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by UPCUE with the Software via online access.
  11. “Entrepreneur” means any natural person, legal entity or partnership, having legal capacity that is not engaged in personal or familial usage in ordering or receiving SaaS while performing its commercial or independent professional or other work.
  12. Enterprise Messenger” means an Enterprise instant messaging service, an instant messaging system used and managed by the Customer or User for communication (e.g. Slack, Microsoft for Teams a.o.).
  13. External User” means any individual (not an organization) using the Software who is not: (i) one of the User’s full-time, part-time or temporary employees; or (ii) any temporary personnel or an independent contractor on assignment at the User’s place of business or work-site.
  14. Fee” means the price paid to UPCUE for the subscription of the SaaS as well as the implementation services.
  15. Order Form” means an ordering document or online order specifying the services to be provided hereunder that is entered into between Customer or User and UPCUE or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
  16. SaaS” means the Software as a service.
  17. “Software” means UPCUE software, and associated documentation that accompanies this ToU, which includes the associated media and UPCUE internet-based services.
  18. “Term” means the term of the subscription or license obtained by the Customer or User.
  19. User” or “End User” means any individual or entity logging in on the SaaS and/or utilizing the bot and using the Software that is not an External User.
  20. “User Generated Content” means any information entered in, uploaded to or in any other way generated by User and stored uploaded, implemented or installed on UPCUE SaaS.

I. TERMS OF USE SAAS

  1. PROVISION OF SOFTWARE AS A SERVICE.
    UPCUE will make the Software available to the User and use commercially reasonable efforts to make the online Software available as Service 24 hours a day, 7 days a week, except for: (i) planned downtime (of which UPCUE shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond UPCUE’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving UPCUE’s employees), Internet service provider failure or delay, hosting service provider failure or delay, Non-UPCUE Application, User Generated Content or denial of service attack. As part of the registration process, User will identify an administrative user name and password for User’s UPCUE account. UPCUE reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
    The User has the right to access and use SaaS subject to the terms of this Agreement and the Documentation.

  2. CLOUD STORAGE & SECURITY.
    UPCUE will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Software and Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Software and/or Data by UPCUE personnel except (i) to provide the subscribed services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as the User expressly permits in writing. Sec. 7 shall remain unaffected. UPCUE and Customer can enter a Data Processing Agreement in accordance with Art. 28 EU-GDPR that includes technical and organizational measures to ensure the security of processing if necessary.

  3. NO LICENSING.
    The Software is provided as SaaS and no license is granted to Customer or User. In particular, the provision of SaaS does not include any exploitation rights, in particular but not limited any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG).

  4. RESERVED RIGHTS.
    The User/Customer acknowledges and agrees that the Software is a proprietary product of UPCUE protected by copyright and other applicable intellectual property laws and treaty provisions. The User/Customer further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with UPCUE. UPCUE retains all rights not expressly granted to the User in this ToU.

    THE SOFTWARE IS PROVIDED AS SOFTWARE-AS-A-SERVICE. THE SOFTWARE IS NEITHER SOLD NOR LICENSED.

  5. PURCHASING CONDITIONS.
    5.1 Subscription plan: UPCUE Software is provided on a subscription basis described in the Order Form for the SaaS and Implementation Services in accordance with this Agreement. 
    5.2 Term: Term of the subscription shall be 12 (twelve) months with Automatic Renewal for additional 12 (twelve) months unless terminated within one month to the end of the Term.
    5.3 Fee: Depending on the agreed subscription plan User/Customer has to pay to UPCUE a monthly subscription Fee as specified Fee as specified in the order form at the beginning of each year.
    5.4 Adjustment of Fees: Botconnect reserves the right to change the Fees or applicable charges and to institute new charges and Fees with effect after the next Renewal, upon thirty (30) days prior notice to User/Customer (which may be sent by email).
    5.5. Free Trial: User may test the software free of charge for the first 30 (thirty) days after registration at UPCUE. Sec. 11 shall apply. Upon termination of Free trial period, no paid subscription is concluded between the parties. UPCUE may at its own discretion delete the account of the User.
    5.6. Support: Depending on the agreed subscription plan UPCUE provides certain service levels as specified in the order form and as applicable at the time the subscription is ordered.

  6. REGISTRATION.
    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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. TERMINATION.
    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.

  13. LIMITED WARRANTY.
    13.1. State of the art: Unless expressly agreed otherwise, the SaaS provided by UPCUE shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications provided by UPCUE, including those in the Documentation. UPCUE does not warrant that the Software under the agreement will be fit for purposes beyond the fulfillment of UPCUE’ obligations under the Agreement.
    13.2. Errors: The User/Customer is advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence. The Parties acknowledge that UPCUE Products are inherently complex and may not be completely free of errors. The following errors are excluded from UPCUE’ warranty: (i) insignificant defects, including but not limited to errors that can be easily corrected and will not show up as a performance defect and (ii) defects discovered in any UPCUE Product that has been modified, altered, or enhanced by anyone other than UPCUE itself.
    13.3. Rectificaton: Defects in the Software shall be rectified by UPCUE within a reasonable period after notification of the defect. The rectification of defects shall be effected, at UPCUE’ choice, by way of repair or substitute the Software free of charge. The User’s right to reduce the Fee for the time the defect persists remains unaffected. The User/Customer is only entitled to an extraordinary termination of the agreement due to the failure to grant use in accordance with the agreement if UPCUE has been given sufficient opportunity to rectify the defect and such attempt has failed.
    13.4. Limitation: If UPCUE has provided the User/Customer with the SaaS against no payment whatsoever, defects in the Software shall be rectified by UPCUE only in case they were resulting from gross negligent or intentional behavior of UPCUE, provided however rectification of a defect in the Software is not otherwise mandatory according to statutory law.
    13.5. Failure in rectification: It shall be assumed that the repair or substitution of Software has failed only if UPCUE has been given sufficient opportunity to effect a repair or substitution delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by UPCUE. If rectification of a defect in the form of repair or subsequent delivery is only possible for UPCUE at unreasonable expenses, UPCUE may refuse to rectify the defect and refer the User to his right to rescind or terminate the Agreement.
    13.6. Source Code: In no event shall the User/Customer be entitled to demand the source code for the Software in regard to any defects.
  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. STATUTORY CONSUMER RIGHTS.
    Nothing in this ToU is meant to contravene statutory rights that consumers may have pursuant to local law.

  19. 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 support@upcue.com . 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.

  20. SEVERABILITY.
    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.

  21. QUESTIONS.
    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.

CONFIDENTIALITY; PROPRIETARY RIGHTS

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.