Service Terms
Last Updated: Nov 1, 2023
1. Terms
1.1 Subject to the terms of this Agreement, Uptomic will use commercially reasonable efforts to provide Customer the Services in accordance with these Service Terms. As part of the registration process, Customer will identify an administrative username and password for Customer’s Account. Uptomic reserves the right to refuse registration of or cancel passwords it deems inappropriate. Customer is responsible for maintaining the confidentiality of all usernames and passwords associated with their Account. In the event of any unauthorized use of Customer's Account or any other breach of security, Customer agrees to immediately notify Uptomic. Uptomic will not be liable for any loss or damage arising from Customer's failure to comply with this security obligation.
1.2 Subject to the terms hereof, Uptomic will provide Customer with reasonable technical support services in accordance with Uptomic Standard practices set forth in Uptomic Standard Contract Clauses. Uptomic will provide technical support services during regular business hours, aiming to respond to customer inquiries within 24 hours. Support includes assistance with the use of the Services and troubleshooting of common issues.
2. Restrictions And Responsibilities
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Uptomic or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Both parties agree to indemnify and hold each other harmless against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of this agreement or otherwise from the use of the Services.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Uptomic against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Uptomic has no obligation to monitor Customer’s use of the Services, should Uptomic come across violations of the forgoing usage agreement Uptomic may prohibit use of Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers cloud services and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. Confidentiality And Proprietary Rights
3.1 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 Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“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 Services 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.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Uptomic shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Uptomic shall have the right to collect and analyze meta data and other meta information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer performance and support Data and data derived therefrom), and Uptomic will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Uptomic will not store any Customer raw data and will operate in accordance with GDPR Requirements as documented in Data Privacy Agreement.
4. Payment Of Fees
4.1 Customer will pay Uptomic the applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Billing invoice will be sent on 15th of the month and include any overage fees from the previous month. Uptomic reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon sixty (60) days prior notice to Customer (which may be sent by email). If Customer believes that Uptomic has billed Customer incorrectly, Customer must contact Uptomic no later than 10 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to Uptomic’s customer support.
4.2 Uptomic may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services.
5. Term And Termination
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be renewed for additional periods based on the Purchase Plan (collectively, the “Term”), when a subscription plan is selected the party must request termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. Warranty And Disclaimer
6.1 Uptomic shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Uptomic’s reasonable control, but Uptomic shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Under no circumstances shall Uptomic be liable for any special, indirect, incidental, or consequential damages arising out of or in connection with the technical support services provided hereunder.
7. Each Party’s Warranties
7.1 Customer’s Identity. Customer warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law, or an individual 18 years or older.
7.2 Right to Do Business. Each party warrants that it has the full right and authority to enter, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
7.3 Without limiting the generality of the foregoing, except for the promises in Standard Clauses, Uptomic has no obligation to indemnify or defend recipient against claims related to infringement of intellectual property rights. Uptomic does not warrant that the services will perform without error or material interruption. Resume/cv conversion and parsing cannot be performed 100% accurately and no warranty of accuracy is provided by Uptomic.
7.4 Customer makes a continuing warranty (i) that it shall not use the Services, or the results of the Services, in any manner, system, or business process which is unlawful or which violates the legal rights of any third party, (ii) that it has the full legal right, or consent of the data owner, to process all data sent to the Services, (iii) that it will indemnify, defend, and hold harmless Provider from any and all third-party claims or penalties of any and every kind arising from any breach or alleged breach of these warranties, (iv) that it will create or obtain software that is capable of correctly accessing the Services, and (v) that it understands and agrees that integration is Customer's sole responsibility.
8. Limitation Of Liability
8.1 Notwithstanding anything to the contrary, except for bodily injury of a person, Uptomic and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Uptomic’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 6 months prior to the act that gave rise to the liability, in each case, whether or not Uptomic has been advised of the possibility of such damages.
8.2 Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party ("Force Majeure Event"), including but not limited to acts of God, floods, fires, earthquakes, explosions, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemics, lockdowns, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition, or failing to grant a necessary license or consent.
8.3 Upon occurrence of any Force Majeure Event, the affected party will give prompt written notice to the other party and will use all reasonable endeavors to limit the impact of the event on its performance of the Agreement. Provided that such party has complied with the foregoing sentence, to the extent that it is prevented, hindered or delayed from fulfilling its obligations under this Agreement, it will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
8.4 The party affected by a Force Majeure Event shall continue to perform its obligations under the Agreement to the extent reasonably possible, and shall seek all reasonable alternatives means for performance not prevented by the Force Majeure Event. If the Force Majeure Event prevents, hinders, or delays the affected party’s performance of its obligations for a continuous period of more than [30] days, the other party may terminate this Agreement by giving [5] days’ written notice to the affected party.
9. Indemnification
9.1 Uptomic will defend, indemnify, and hold Customer harmless against any legal claim that the Uptomic technology used within the Services, and the Services itself standing alone and without reference to its use in, by, with, or inclusion in, any third-party system, method, manner, or process, infringes or misappropriates any third party’s intellectual property rights. Uptomic will defend, indemnify, and hold Customer harmless against any claim that the Services infringes the copyright, trademark, or service mark rights of any third party.
9.2 Customer agrees to indemnify, defend and hold Uptomic (including but not limited to Uptomic’s affiliates and licensors and each of its/their respective employees, officers, directors, and representatives) harmless from and against any and all third party claims, allegations, judgments, losses, liabilities, penalties or damages of any or every kind arising out of or relating to the Services, violation of these Terms and Conditions, Recipient’s act of gross negligence or misconduct, Customer’s act or omission constituting violation of an applicable rule, law or regulation, Customer’s violation of the AUP, Customer’s or any End User’s use of the Services, or the results obtained from any use of the Services, in whole or in part, in any application, system, method, source code, manner or process which is alleged, claimed, or adjudged to violate any third party’s rights, including but not limited to privacy rights and intellectual property rights, breach of this Agreement or violation of applicable law by Customer or any End User, Customer Data or the combination of Customer Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Data or by the use, development, design, production, advertising or marketing of Customer Data, or a dispute between Customer and any End User. If Provider or its affiliates are obligated to respond to a third-party subpoena or other compulsory legal order or process described above, Customer will also reimburse Uptomic for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to the third-party subpoena or other compulsory legal order or process at its then-current hourly rates.
9.3 The indemnified party must promptly notify the indemnifying party of any claim or allegation relative to an indemnified matter, but the failure to promptly notify will only reduce the indemnifying party’s obligations to the proportionate extent that the failure prejudices its ability to defend the claim. The indemnifying party may: (i) use counsel of its own choosing (subject to the written consent of the indemnified party, which shall not be unreasonably withheld) to defend against any claim; and (ii) settle the claim as it deems appropriate, if it obtains the prior written consent of the indemnified party before entering any settlement, which shall not be unreasonably withheld. The indemnifying party may also assume control of the defense and settlement of the claim at any time; the indemnified party may appoint its own non-controlling counsel, at its own expense.
10. Service Availability
10.1 The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance.
10.2 If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.
10.3 Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 3 hours, Company will credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime during normal business hours; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place and continues until the availability of the Services is restored.
10.4 To receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
11. Service Support Terms
11.1 Uptomic will provide Technical Support to Customer via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Central European Time, with the exclusion of Belgian National Holidays (“Support Hours”).
11.2 Customer may initiate a helpdesk ticket during Support Hours by emailing support@uptomic.co
11.3 Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
12. Miscellaneous
12.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Uptomic’s prior written consent. Uptomic may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created because of this Agreement and Customer does not have any authority of any kind to bind Uptomic in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of Belgium without regard to its conflict of law’s provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Uptomic to serve as a reference account upon request.