version 1 dated November 17, 2021
This Terms of Service (“Agreement”) is entered into by and between Upgini (as defined below) and the entity or person registered at the Website and requested access to any of the Services for Users as they are defined below. This Agreement becomes effective on the date when User indicated its acceptance while initiating use of Services.
By indicating your acceptance of this Agreement or accessing or using any service, you are accepting all of the terms and conditions of this Agreement. If you do not agree to this Agreement, you may not use any service.
If you are using any service as an employee or representative of a legal entity, you must be authorized to sign for and bind such entity in order to accept the terms of this agreement, and you represent and warrant that you have the authority to do so.
Account: User’s account for use of Website and Services.
User: a legal entity using services for Users subject to this agreement for Users available at the Website.
Data Repository: a cloud storage space procured by Publisher from a party other than Upgini that is used for Publisher Data upload, storage and processing while use of Services. Upgini provides at Website the list of suppliers providing Data Repositories and admittable for the purpose of use of Services.
Deliverables: any modifications of Publisher Data resulted from its processing within Data Repository.
Documentation: Services technical documentation and user instructions provided by Upgini to User online through the User’s Account.
Listing Information: information about Publisher Data including title, description, any applicable metadata, and other information reasonably requested by Upgini.
Order means the electronic order placed by User via its Account where User specifies the scope of Services being provided by Upgini under this Agreement. Orders that reference this Agreement will become part thereto.
Platform: Upgini cloud environment consisting of Upgini software and infrastructure, made available to Users online via Website for the purpose of using Services under User’s Account.
Publisher: a legal entity or an individual, which upload, store and process Publisher Data by using Publisher Software.
Publisher Data: any data or data files of any type that are uploaded by or on behalf of a Publisher to its Data Repository.
Publisher Software: Search Agent that is developed and made available to Publisher by Upgini for installation on end user computers as part of the Services. Publisher Software is used for local data processing within the Data Repository.
Service (Services): services rendered by Upgini under this Agreement.
Subscription Term: the term of use of Services as designated in the Order.
Upgini: a company incorporated under the laws of United Arab Amirates which contracting with User.
Usage Data means query logs, and any data relating to the operation, support and/or about User’s use of the Service.
End User: a person authorized by the User to use the Services and the Documentation on behalf of the User. User shall be responsible for each End User’s compliance with this Agreement.
2.1. Account Registration. Before using the Services User shall register on Website and create the Account. Upon completion successful check of provided information and identification of the User Upgini will activate Account. Upgini may refuse to open an Account or request additional information or documents required for identification. User to provide complete and accurate information when opening an Account, and agree to timely update this any information if required.
2.2. Scope of Services. Upgini provides access to the Platform on a platform-as-a-service basis that allows Users to exchange search requests and reports with the Publishers, to request and get access to Deliverables using Listing Information.
Upgini will also provide technical support and consultancy services on a 24X7 timely basis with respect to the Services ordered or rendered to the User. For that purpose User agrees to provide all necessary access to its personnel and equipment, and to reasonably cooperate with Upgini via email.
2.3. Oder. User shall submit written Orders via its Account, whereby it shall specify the scope of Services to be rendered under this Agreement, fees, Subscription term.
3.1. License to the Platform. Upgini grants to User a revocable, limited, royalty-free, non-exclusive, non-transferable, worldwide and non-sublicensable license to the Platform for the purpose of access and use of Services through the Website.
3.2. License to Deliverables. Publisher shall retain all right, title and interest (including any and all intellectual property rights) in and to the Publisher Data and Deliverables. Publisher will grant to Users a non-exclusive, worldwide, non-transferable worldwide license to use the Deliverables ordered by Users on or through the Website for the internal purposes only. The license fee will be included in Services Fees.
3.3. License to Listing Information. User is granted a worldwide, non-exclusive, irrevocable, royalty-free license to use the Listing Information on Website in connection with Services.
3.4. Rights to Publisher Data. Publisher warrants that Publisher has and will have sufficient rights in the Publisher Data, and processing of Publisher Data by Publisher and granting the rights to Deliverables to User will not violate any laws or the rights of any third party. User retains all right and interest to Publisher Data and do not provide any rights to Publisher Data under this Agreement.
3.5. Upgini Intellectual Property. User agrees that Upgini retain all right, title and interest in and to the Service (including User Software, Platform, Website and its design, patents, copyright, trademark Upgini, and other Upgini intellectual property rights) and documentation related thereto, and any derivative works, modifications, or improvements of any of the foregoing (“Upgini Intellectual Property”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Upgini Intellectual Property is granted to User.
User acknowledges that the Service and Platform are available online, User has no right to obtain a copy of the underlying computer code for any Service. Upgini may use any User’s suggestions, requests, recommendations to incorporate them into Upgini products and services.
3.6. Using of Intellectual Property for Marketing. Upgini may use and display User’s name, logo, trademarks, and service marks on Website and in Upgini’s marketing materials in connection with identifying User as a User of Upgini. Upon User’s written request, Upgini will promptly remove any such marks from Website and, to the extent commercially feasible, Upgini’s marketing materials. If Upgini requests, User agrees to participate in a case study, press release and/or cooperate with Upgini in speaking to the media, and to speak at a future Upgini event.
4.1. Compliance with Applicable Laws. Upgini will provide the Services in accordance with applicable laws and regulations including, without limitation, those related to data privacy and data transfer.** User assures that User’s use of the Services will comply with applicable laws and government regulations, including but not limited to any data localization or data sovereignty laws or regulations.
4.2. **Usage Data. Upgini may collect and use Usage Data to develop, improve, support, and operate its products and services. Upgini may not share any Usage Data that includes User’s Confidential Information with a third party except if Usage Data is aggregated and anonymized such that User cannot be identified.
4.4. Confidentiality. For the purposes of this Agreement Confidential Information shall mean all information that is identified by the Disclosing Party as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. For instance, all Publisher Data, Upgini intellectual property, any disputes and disagreements between the parties in relation to this Agreement (including negotiations, mediation or arbitration) except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision; other information that became available to the parties due to execution of this Agreement will be deemed as Confidential Information without any marking or further designation. Confidential Information shall not include information that (i) the Receiving Party possessed prior to receipt of the Confidential Information from the Disclosing Party; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party will oblige to: (1) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except as otherwise authorized by the Disclosing Party in writing; (2) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
5.1. Parties Responsibility. User acknowledges and agrees that: (1) Upgini does not guarantee accuracy, applicability, reliability, integrity, performance or appropriateness of Publisher Data, Listing Information and Deliverables, nor shall Upgini be liable for any loss or damage that may be caused directly or indirectly by User’s use of Services; (2) User is responsible for maintaining the security of the login and password to the Account and may not disclose the password to any third party (other than End Users authorized by User to use Services under this Agreement), and is solely responsible for any use of or action taken under the password; (3) User at its sole discretion will access and use Deliverables and bear commercial, legal and any other risks related thereto; (3) Upgini will collect information about Consumer’s use of and access to the Service (including identifying Consumer in connection with such information) for the purpose of billing and invoicing for Services.
5.2. Services Restrictions. User will not (a) use (and will not permit any third party to) any Service in violation of the third parties intellectual rights; (b) use any Service in violation of this Agreement; (c) use any Service for data warehousing service for the benefit of a third party.
5.3. Platform and Software Restrictions. User will not (a) use the Platform and User Software except to the extent expressly required for use of Services; (b) reverse decompile, disassemble, or otherwise seek to obtain the source code of User Software.
6.1. Fees and Payment. For Services rendered under this Agreement Upgini will charge fees stipulated in Orders placed while requesting access to Services via User’s Account.
6.2. Taxes. Fees do not include Taxes. User is responsible for paying all Taxes associated with its purchases of the Services hereunder. If Upgini is legally obliged to pay or collect Taxes for which User is responsible Upgini will invoice User the total amount (including taxes) unless User provides Upgini with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Upgini, except as required by applicable law, in which case User will increase the amount payable as necessary so that, after making all required deductions and withholdings, Upgini receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Upgini’s request, User will provide to Upgini its proof of withholding tax remittance to the respective tax authority.
7.1. Term of the Agreement and Orders. This Agreement is valid from the Effective Date until the date of its termination subject to this Agreement. Each Order will terminate upon expiration of the applicable Subscription Term unless User continues using Services.
7.2. Voluntary Termination. Either party may terminate this Agreement (including all related Orders) by sending a written notice to the other prior at least 15 days to the date of termination. User may cease using the Services which will mean termination of this Agreement as of the date of such cease. For any termination of this Agreement in accordance with this clause Upgini shall be entitled to receive any Fees due to payment prior to the termination date.
7.3. Termination for Violation. Either party may immediately terminate this Agreement (including all related Orders) if the other party fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice. The exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement in accordance with this clause Parties shall agree of the amount of Fee due to payment.
7.4. Survival. The following Sections of this Agreement will survive any expiration or termination of this Agreement: 4.4 (Confidentiality), 6 (Fees and Payments), 11 (Indemnification), 12 (Limitation of Remedies and Damages).
7.5. Suspension of Service. In addition to any of its other rights or remedies Upgini has the right to suspend provision of Services in case of: (1) User’s non-payment for more than 15 days after the payment date, (2) User’s breach of this Agreement; (3) Service attacks or disruptions outside of Upgini’s control that may cause material losses to Upgini or other Users and Users; (4) as required by law or at the request of governmental entities.
8.1. Indemnification. Upgini will defend Provider against any claim by a third party alleging that any Provider Software used in accordance with this Agreement infringes any intellectual property right of such third party and will indemnify any damages and costs awarded against Provider resulting from such claim.
8.2. Indemnification by User. Provider will defend Upgini against any claim by a third party arising from or relating to any Provider Data used in connection with the Service and will indemnify any damages and costs awarded against Upgini resulting from such claim.
8.4. Indemnification Procedures. In the event of a potential indemnity obligation under this clause the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim shall not relieve the indemnifying party of its obligations under this clause, however the indemnifying party shall not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this clause.
9.1. Assignment. Neither party may assign this Agreement without prior written consent of the other party, except for assignment due to merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor. Each party shall promptly provide notice of any such assignment.
9.2. Validity. This Agreement shall remain in effect in case any of its provisions shall be deemed as invalid.
9.3. Mutual Warranty. Each party warrants that it has legal authority to enter into this Agreement.
9.4. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice each party shall take attempts in good faith to resolve the dispute.
9.5. Governing Law. This Agreement will be governed by the laws of England.
9.6. Notices. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth at the Website (for Upgini) or Account (for User) and will be deemed to have been received by the addressee: (i) if given by hand or courier service or email, immediately upon receipt; (ii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email. Email notifications to Upgini shall be to firstname.lastname@example.org.
9.7. Modifications to this Agreement. Upgini may change or modify this Agreement at any time and will notify such changes by updating the updated version of the Agreement on its Website. Any and all modifications or changes to this Agreement will become effective upon publication on the Website. Upgini will use reasonable efforts to notify User of the changes through communications via User ‘s Account, email or other means. Continued use of Services after the updated version of this Agreement becomes effective will mean User’s acceptance of such updated version.
9.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
9.9. Independent Contractors. The parties to this Agreement are independent contractors. This Agreement does not constitute partnership, joint venture, employment, franchise between the parties which are independent.