1. TOOLUP, a partnership established under the laws of Germany and European Union having its principal place of business at Rheinsberger Str. 76/77, 10115 Berlin, Germany (the "Provider"); and
2. Youm as an individual OR a company (the "Customer").
1.1 In this Agreement:
"Acceptance Criteria" means:
(a) the Platform and Hosted Services conforming in all material respects with the Hosted Services Specification; and
(b) the Hosted Services being free from Hosted Services Defects;
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Anti-Corruption Laws" means all applicable anti-bribery and anti-corruption laws ;
"Anti-Tax Evasion Laws" means all applicable anti-tax evasion laws ;
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
"Business Day" means any weekday other than a bank or public holiday in Germany;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Change" means any change to the scope of the Services OR any change to this Agreement;
"Charges" means the following amounts:
(a) The amount specified in pricing page for monthly or yearly subscriptions
(b) This amount is chargeable per user and by adding new member to user panel, it would be chargeable.
(c) such amounts as may be agreed in writing by the parties from time to time
(d) the amount may change at any time and should always be checked in pricing page on website
"Confidential Information" means the Provider Confidential Information and the Customer Confidential Information;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider during the Term OR at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
(b) the Customer Data;
[additional list items]
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Indemnity Event" has the meaning given to it in Clause 27.3;
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding personal data with respect to which the Provider is a data controller;
"Customer Representatives" means the person or persons identified as admin or owner in the platform;
"Customisation" means a customisation of the Hosted Services, whether made through the development, configuration or integration of software, or otherwise;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means all TOOLUP services which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect OR a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Hosted Services particulars and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Minimum Term" means, in respect of this Agreement, the period of 12 months for yearly subscriptions and 1 month for monthly subscriptions beginning on the Effective Date;
"Mobile App" means the mobile application known as (COMING SOON) that is made available by the Provider through the Google Play Store and the Apple App Store;
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the European Union from time to time;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider Confidential Information" means:
(a) any information disclosed by or on behalf of the Provider to the Customer during the Term OR at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential;
"Provider Indemnity Event" has the meaning given to it in Clause 27.1;
"Provider Representatives" means the person or persons identified as support team or business owners, and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of the appointment;
"Remedy Period" means a period of 10 Business Days following the Customer giving to the Provider a notice that the Hosted Services have failed the Acceptance Tests, or such other period as the parties may agree in writing;
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Third Party Services" means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider;
"Update" means a hotfix, patch or minor version update to any Platform software;
"Upgrade" means a major version upgrade of any Platform software; and
"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force indefinitely subject to termination in accordance with Clause 30 or any other provision of this Agreement.
3. Hosted Services
3.1 The Provider shall provide, or shall ensure that the Platform will provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
3.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of the User Interface for the internal business purposes of the Customer in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause 5.2 is subject to the following limitations:
(a) the User Interface may only be used through a Supported Web Browser( and soon the Mobile App);
(b) the User Interface may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
(c) [the User Interface may only be used by the named users identified in [Schedule 1 (Hosted Services particulars)] OR [[identify document]], providing that the Customer may change, add or remove a designated named user in accordance with [the user change procedure defined by the Hosted Services]];
(d) the API may only be used by an application or applications approved by the Provider in writing and controlled by the Customer.
3.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 5.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
3.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
3.6 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.7 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
3.8 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.1 The Provider and the Customer may agree that the Provider shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in writing by the parties
4.2 All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider (unless the parties agree otherwise in writing).
4.3 From the time and date when a Customisation is first delivered or made available by the Provider to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customisation shall be governed by Clause 5.
4.4 The Customer acknowledges that the Provider may make any Customisation available to any of its other customers or any other third party at any time after the making available of the Customisation to the Customer.
5. Scheduled maintenance
5.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform[, providing that such scheduled maintenance must be carried out in accordance with this Clause 7.
5.2 The Provider shall where practicable give to the Customer at least 5 Business Days' prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
5.3 The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed 5 hours.
6. Maintenance Services
6.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
6.2 The Provider shall provide the Maintenance Services with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.
6.3 The Provider shall provide the Maintenance Services in accordance with Schedule 4 (Maintenance SLA).
6.4 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue.
7. Support Services
7.1 The Provider shall provide the Support Services to the Customer during the Term.
7.2 The Provider shall provide the Support Services with reasonable skill and care.
7.3 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue.
8. Customer Data
8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers,subject to any express restrictions elsewhere in this Agreement.
8.2 The Customer warrants to the Provider that the Customer Data OR the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
8.3 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
9. Integrations with Third Party Services
9.1 The Provider may integrate the Hosted Services with any Third Party Services at any time.
9.2 The Provider shall use reasonable endeavours to maintain any integration with Third Party Services that has been activated with respect to the Hosted Services account of the Customer. Subject to this, the Provider may remove, suspend, deactivate or limit any Third Party Services integration at any time in its sole discretion.
9.3 The Customer acknowledges and agrees that:
(a) the activation of Third Party Services with respect to the Hosted Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted Services to the relevant Third Party Services and vice versa;
(b) the Provider has no control over, or responsibility for, any disclosure, modification, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third Party Services;
9.4 Subject to Clause 28.1:
(a) the Provider gives no guarantees, warranties or representations in respect of any Third Party Services; and
(b) the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Services or any provider of Third Party Services.
10. Mobile App
10.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations or liabilities.
11. No assignment of Intellectual Property Rights
11.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
12.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
12.2 The charges will be billed to the customer monthly or annually based on the customer’s subscription at the beginning of each month/year.
12.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider].
12.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice before end of the current subscription recurring period (1 month or 1 year)
12.5 Charges will calculate based on the latest update on the pricing page on webstile (https://toolup.io/pricing)
13.1 The Provider shall issue invoices for the Charges to the Customer monthly or annually based on customer subscription at the beginning of each recurring period.
13.2 The Customer must pay the Charges to the Provider immediately after subscribing online or after the trial period if there is a trial period for the chosen subscription plan.
13.3 The Customer must pay the Charges by debit card, credit card, direct debit, paypal through the platform.
14. Confidentiality obligations
14.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than improving the Customer Experience in the platform.
14.2 The Customer must:
(a) keep the Provider Confidential Information strictly confidential;
(b) not disclose the Provider Confidential Information to any person without the Provider's prior written consent, and then only under conditions of confidentiality approved in writing by the Provider;
(c) use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Provider Confidential Information; and
(e) not use any of the Provider Confidential Information for any purpose
14.3 No obligations are imposed by this Clause 14 with respect to a party's Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
14.3 The restrictions in this Clause 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
14.4 Upon the termination of this Agreement, each party must immediately cease to use the other party's Confidential Information.
14.5 Following the date of effective termination of this Agreement the relevant party must:
(a) irreversibly delete from its media and computer systems all copies of the other party's Confidential Information[ (and ensure that the other party's Confidential Information is irreversibly deleted from the media and computer systems of all persons to whom the relevant party has directly or indirectly disclosed that Confidential Information)];
(b) ensure that no other copies of the other party's Confidential Information remain in the relevant party possession or control;
subject in each case to any obligations that the relevant party has under this Agreement to supply or make available to the other party any data or information, and providing that the relevant party shall have no obligation under this Clause 22.7 to delete or to cease to possess or control any of the other party's Confidential Information to the extent that the relevant party is required by applicable law to retain that Confidential Information.