Upsy – Terms of Service
Last updated: January 11. 2022
These Terms of Service form an integral part of the service agreement (“Service Agreement”) which governs the use of the Service provided by Upsy Company Oy (“Upsy”) to the customer defined in the Order or using the Service (“Customer”). By submitting an Order or by using the Service, Customer acknowledges and agrees that Customer is subject this Service Agreement. Upsy and Customer shall be hereinafter referred to as Parties and separately as Party.
If Customer submits an Order online or agrees on a use of the Service on a trial basis, this Service Agreement will also govern that use. If you are entering into this Service Agreement on behalf of a company or other legal entity you represent that you have the authority to bind such entity to this Service Agreement in which case Customer shall refer to such entity.
1. Definitions
Interpretation
Definitions
Unless expressly otherwise stated or evident in the context the following capitalized terms shall have the following meaning:
Force Majeure Event means an event, or a series of related events outside the reasonable control of the affected Party and which could not have been prevented by commercially reasonable precautions, including but not limited to failures of the internet, power failures, fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, epidemic, civil disorders, rebellions, revolutions, sabotage, strikes and labor disputes.
Order means an order for the Service submitted by Customer as accepted by Upsy or other standard ordering process designated by Upsy.
Service means the Upsy Shopping Helper software as a service
Subscription Fee means the fee set out in this Service Agreement or applicable Order, which is payable by Customer and provides the right to use the Service.
Subscription Period means the term for which Customer has paid the Subscription Fees and therefore has the right to use the Services.
Payment tier means Payment is set according to tiers. Tier means an amount of unique visitors for example from 10,000 to 24,999 visitors a month. According to the tier of payment customer is obligated to pay for the service according to store session count per month.
Store session means all online store sessions during which Upsy is loaded. Each load initiates an Upsy session which lasts for 2 hours. If a customer is inactive after that period, the session ends and is counted as one. If the customer initiates an action before the 2 hours mark, the session continues until 2 continuous hours of inactivity.
Third Party Software means software components including but not limited to open source software, embedded in or accompanying the Service and provided under separate license terms.
2. Service and availability
Subject to Customer paying applicable Subscription Fees, Upsy shall use reasonable efforts to provide the Service materially in accordance with this Service Agreement.
Upsy may at its discretion also provide a separate implementation project and customisations for the Service. The Parties shall agree separately in writing on prices and schedule and other terms of such implementation projects or customisations.
Upsy is entitled to carry out maintenance work for the Service. Upsy shall use commercially reasonable efforts to limit the impact of the maintenance work to Customer’s use of the Service. Customer is not entitled to any damages or compensations for any interruptions of the Service, if they are caused by such maintenance work.
Upsy shall not be liable for any interruptions caused due to disturbances or unavailability due to third party services, networks or equipment. Upsy shall not be liable for the correctness or accuracy of the data contained in Customer’s environment which the Service uses.
If Customer is using the Service on a trial basis, notwithstanding Section 7, the Service is provided “as is” without any warranties and Customer agrees and acknowledges that Upsy makes no representation or warranty of any kind in respect of the Service that may otherwise apply.
3. Customer Responsibilities
Customer is responsible for installing the Service to Customer’s environment and ensuring that the environment is suitable and meets the requirements of the Service.
Customer may request for Upsy to review the suitability of Customer’s environment for the Service. If Upsy after such a review, and at its discretion, deems that Customer’s environment is not suitable for the Service or implementation requires additional work, Upsy is not responsible for providing the Service.
Customer may not:
- use the Service or make copies of the Service otherwise than as permitted by this Service Agreement;
- copy, alter, sublicense, lease, distribute or rent the Service or make the Service available to the public or to any third parties;
- reverse engineer, decompile or disassemble the Service;
- use the Service in any manner or for any purpose prohibited by any laws or regulations;
- take any action designed to unlock or bypass any implemented restrictions on usage, access to, or number of installations of the Service; or
- use the Service in purpose of spreading viruses or malware.
If Upsy has a reasonable doubt that Customer has used the Service in violation of the restrictions set forth above in subsections (a)-(f), Upsy is entitled to suspend the Service temporarily. When reasonably practicable and lawfully permitted, Upsy will provide Customer with advance notice of any such suspension. If Customer does not fully address the cause for the suspension within thirty (30) days after suspension, Upsy may terminate this Service Agreement.
Customer acknowledges that the Service may operate, interface or be delivered with Third Party Software. Warranties or other terms of the provider or reseller of applicable Third Party Software in the Services shall apply.
No licensor or Third Party Software provider or reseller makes any representation or warranty to the Customer concerning the Third Party Software and shall not have any obligations or liability to Customer in respect to this Service Agreement or the Customer’s use of the Third Party Software.
4. Data Security and Data Protection
Upsy shall that ensure that appropriate technical and organizational measures are in place and maintained by Upsy or its subcontractors.
Upsy shall process personal data for the purpose of providing the Service in accordance with this Service Agreement and Upsy Data Processing Agreement. Both Parties shall comply with applicable regulations concerning protection of personal data and privacy.
In order to provide the Service according to this Service Agreement, Upsy receives i.a. product, order and transaction data from the Customer’s environment. Upsy and relevant third party service providers have the right to analyse and automate processing of this data in order to provide the Service and create statistical analysis from the data. Processing of this data does not include processing of personal data. Upon written request from Customer, Upsy shall provide Customer with a list of the relevant third party service providers and the services they provide.
5. Intellectual Property Rights
All ownership and intellectual property rights (including, but not limited to, copyrights, trademarks, patents, trade secrets and know-how and the right to modify the Service and transfer the rights) to the Service, including for the avoidance of doubt any related tools and methodologies as well as new versions, updates, customizations and other amendments thereof, as well as the results of any implementation projects and, belongs to and shall remain the sole and exclusive, property of the Upsy or its third party licensors.
6. Pricing and Payment Terms
Customer shall pay the applicable Subscription Fee for the Service. Upsy shall invoice the Subscription Fee in advance from each subscription period monthly or yearly, depending on what has been agreed in contract. Payment shall be made in Euros against invoice, fourteen (14) days net from the date of the invoice. Interest on overdue payments is ten (10) percent per annum.
Payment is set according to tiers. Tier means an amount of store sessions for example from 10,000 to 24,999 sessions a month. According to the tier of payment customer is obligated to pay for the service according to sessions count per month. Upsy has the right to change the subscription payment tier and payment in case there is less of more store sessions counted in average 3 months back.
All prices are exclusive of any and all taxes and duties. Customer is responsible for the VAT and unless, otherwise agreed, Upsy shall add applicable VAT to the invoice.
Upsy has the right to change the pricing of the Service by informing Customer of the change with a written notification. The changed prices shall take effect no earlier than two (2) months of the date of the notification. If the Customer does not accept the changed prices, the Customer has a right to terminate this Service Agreement by notifying Upsy thereof in writing at least fourteen (14) days before the effective date of the change.
Unless otherwise agreed, Upsy shall invoice for agreed additional works, customizations and implementation projects monthly in arrears at Upsy’s then current standard hourly rates. Upsy may provide Customer with a non-binding cost estimate regarding requested additional works, customizations or implementation projects.
7. Disclaimer and limitation of liability
EXCEPT AS SPECIFICALLY SET OUT IN THIS SERVICE AGREEMENT, THE SERVICE IS PROVIDED TO CUSTOMER “AS IS” WITHOUT ANY WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO WARRANTIES OF COMPATIBILITY WITH CUSTOMER’S OWN SOFTWARE OR HARDWARE OR FITNESS FOR A PARTICULAR PURPOSE OR CORRECTNESS OF DATA.
Customer or Upsy shall not be liable for indirect, consequential loss or damage.
In any event, the total accumulated liability arising out of or related to this Service Agreement of either Party shall be limited to the aggregate amount of Subscription Fees paid by Customer to Upsy for a period of six (6) months prior the breach.
This limitation of liability shall not apply to the extent liability arises directly from gross negligence or wilful misconduct.
8. Subscription Period and Termination
The subscription for the Service shall renew automatically for a consecutive Subscription Period unless either Party notifies the other party in writing of its intention not to renew by no later sixty (60) days in yearly contract and fourteen (14) days in monthly contract before the expiration of the then-current Subscription Period.
Upsy is entitled to terminate this Service Agreement by a written notice effective immediately:
- Customer has failed to pay an outstanding and undisputed invoice related to Services and has not settled the invoice within fourteen (14) days from receipt of an invoice reminder; or
- Customer uses the Service in violation of this Service Agreement or violates Upsy’s intellectual property rights and does not immediately discontinue such use or violation after receiving a notification of the violation.
Upon termination or expiration of Customer’s right to use the Service, Upsy shall remove all settings regarding the Service from Customer’s environment. Customer shall provide Upsy with necessary access and assist Upsy reasonably in connection with removal of settings regarding the Service.
Customer shall destroy any Upsy code in its environment and at Upsy’s option either return or destroy all documentation related to the Service on any media and in any form in Customer’s possession.
Customer shall confirm in writing within five (5) days from Upsy’s written request that all materials related to the Service in Customer’s possession have been either returned to Upsy or destroyed.
9. Changes
Upsy has the right to make changes and updates to the Service at any time. Upsy shall notify Customer of any substantial changes to the Service in advance.
10. Confidentiality
Each Party shall keep in confidence all materials and information received from the other Party marked as confidential or which should be understood to be confidential, including but not limited to, customer information, pricing and sales strategies. A Party shall not have the right to use confidential information for any other purposes than for performing its obligations under this Service Agreement. Confidentiality obligation pursuant to this section shall survive the termination of this Service Agreement.
11. Force Majeure
Neither Party shall be liable for any default or delay in the performance of its obligations under this Service Agreement to the extent that such default or delay is caused by a Force Majeure Event.
If either Party suspends their obligations due to a Force Majeure Event, the Party invoking to the Force Majeure Event is excused from its obligations under this Service Agreement as long as and to the extent such Force Majeure Event continues to impact the obligations and said Party continues to use commercially reasonable efforts to recommence performance.
The Parties shall without delay on first clear notice of Force Majeure inform each other of the beginning and in the same manner of the end of such Force Majeure circumstances.
12. General
No assignment. Neither Party may assign this Service Agreement either wholly or in part without the written consent of the other party. However, Upsy is entitled to transfer this Service Agreement in connection with the transfer of its business operations.
Reference right. During the Term, Upsy Company may include Customer’s name and logo in Upsy´s website, press releases, promotional and sales literature, and lists of customers. Content of written reference case descriptions must be agreed together between the Parties.
No partnership. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement.
Entire agreement and severability. This Service Agreement establishes the entire understanding between the parties concerning the Service. If any of the provisions of this Service Agreement are deemed invalid or unenforceable, all other provisions shall remain in full force and effect.
Applicable law. This Service Agreement shall be governed by the laws of Finland, save for its choice of law provisions.
Dispute resolution. Any disputes arising out of this Service Agreement shall be finally resolved in arbitration in accordance with the Rules of Arbitration of the Central Chamber of Commerce of Finland. The place of arbitration shall be Helsinki and the number of arbitrators shall be one (1).