UP4 ANALYTICS TERMS OF SERVICE

  • Definitions

In these Terms of Service the following terms, indicated with a capital, whether single or plural, will have the following meaning. 

  • Agreement: the order form, quote or any other agreement between Client and UP4 Analytics with regard to the provision and use of the Service;

  • Client: the party who is entering into an Agreement with UP4 Analytics;

  • Client Data: all information, data or material, including Personal Data, submitted by Client to UP4 Analytics and/or collected by UP4 Analytics (on behalf of Client) from Client’s Sources; 

  • UP4 Analytics: UP4 Analytics, a private company with limited liability, established and existing under the laws of Estonia, having its registered office in Sepapaja tn 6, 15551 Tallinn, Harju Maakond, Estonia, registered with the business number 16958633;

  • Intellectual Property Rights: all intellectual property rights and associated rights, including copyrights, trade mark rights, patent rights, design rights, trade name rights, database rights, and neighbouring rights, as well as rights to knowhow;

  • Personal Data: any information relating to an identified or identifiable natural person, as defined by the General Data Protection Regulation;

  • Report: all information, data or material in the form of images, tables, text, graphs and audio-visual material or any other content generated and submitted by UP4 Analytics to Client through the Service; 

  • Service: all (consultancy) services provided by UP4 Analytics to Client consisting of collecting, processing and analysing Client Data on behalf of Client to generate the Report; 

  • Sources: third party services and products of which Client makes use and with which UP4 Analytics may collect Client Data in order to generate the Report, as requested by Client, and agreed upon in the Agreement; 

  • Terms of Service: these terms of conditions which form an integral part of the Agreement.

  • General

    • These Terms of Service form part of all Agreements and govern any use made of the Service by Client. 

    • UP4 Analytics may at any time amend or supplement these terms and conditions. In that case the amended terms and conditions will be sent to Client. If Client continues the use of the Service after receiving the amended or supplemented terms and conditions, Client thereby irrevocably accepts those conditions.

    • If at any time any provision of these terms and conditions is or becomes illegal, void or invalid for any reason whatsoever, such invalidity shall not affect the validity of the remainder of these Terms of Use and such invalid provision shall be replaced by UP4 Analytics by another provision which, being valid in all respects, shall have an effect as close as possible to that of the replaced provision.

  • Service

  • To the best of its ability, UP4 Analytics will make efforts to provide the Service with due care. Client accepts that the Service only contains the functionalities and other characteristics as it contains at the moment of use (“as is” and “as available”). Each and every use of the Service is for Client’s own risk and responsibility.

  • UP4 Analytics does not guarantee that the Service shall be effective, the use of the Service shall lead to certain results, or that the Reports shall be accurate, up to date and complete.

  • UP4 Analytics is at all times, without in any way becoming liable, entitled to make procedural and technical alterations and/or improvements to the Service.

  • Client will not, during the entire term of this Agreement, and for a period of two (2) years after the termination or expiration thereof, directly or indirectly:

    • induce or attempt to induce any employee or independent contractor of UP4 Analytics to leave the employ or contracting relationship with UP4 Analytics, or in any way interfere with the relationship between UP4 Analytics and any employee or independent contractor thereof;

    • solicit for employment or as an independent contractor any person who was/is an employee or independent contractor of UP4 Analytics; or

    • induce or attempt to induce any customer, supplier or other business relation of UP4 Analytics to cease doing business with UP4 Analytics or in any way interfere with the relationship between any such customer, supplier or other business relation and UP4 Analytics.

    • If Client hires or solicits any employee or independent contractor of UP4 Analytics, in violation of the above, Client agrees to pay a compensation in the amount of EUR 50.000 per employee or independent contractor hired. Both parties agree that this amount is fair and reasonable and is not a penalty of any kind, without prejudice to other (legal) remedies of UP4 Analytics.

  • Client Data and Report

  • On the request of Client, UP4 Analytics will collect Client Data through with Sources of which Client makes use of. Client guarantees that UP4 Analytics is allowed to make use of the data sources on behalf and for the benefit of Client and that the use of and access to the data source, including the login credentials thereto by UP4 Analytics does not infringe any terms or agreements between Client and the Source(s).

  • Should the Source disconnect the connection and/or any access by UP4 Analytics to the Source and the Client Data, UP4 Analytics will not be able to provide the Service to Client and cannot be held liable or responsible for any damage as a result thereof. 

  • UP4 Analytics grants Client a limited, personal, irrevocable, nonexclusive, non sublicensable, non transferable right to use the Reports for its internal business operations. Client is responsible for the use of the Report by Client. UP4 Analytics accepts no responsibility whatsoever for any decisions or choices made by Client based on the Report. 

  • UP4 Analytics is not responsible for loss, damage, inaccuracy and/or incompleteness of any Client Data or the Report provided through the Service or making backup copies of any Client Data or Reports.

  • Privacy

  • Client ensures that the use of the Service by Client and the use and processing of Client Data (by UP4 Analytics) is compliant with the applicable data privacy and data security laws and regulations, including but not limited to the General Data Protection Regulation (“GDPR”). Client guarantees that it will comply with all legal obligations regarding the processing of Personal Data, including the obligation to inform data subjects about the processing of their Personal Data, and indemnifies and holds UP4 Analytics harmless against any claims of third parties relating to or following from the processing of Personal Data by UP4 Analytics.

  • Parties agree that Client solely determines the purposes and means of the processing of the Personal Data. UP4 Analytics processes Personal Data only on behalf of Client and therefore qualifies as a data processor within the meaning of Article 4(8) GDPR. Parties agree to conclude a data processing agreement as described by Article 28(3) GDPR. 

  • Intellectual Property Rights

  • All Intellectual Property Rights relating to Service and the Reports are owned by UP4 Analytics and/or its licensors. Nothing in the Agreement constitutes the transfer of any Intellectual Property Rights from UP4 Analytics to Client. Client is solely granted a license as described in these Terms of Use. All Intellectual Property Rights relating to Client Data, if any, are owned by Client.

  • Client is not permitted to remove, render illegible, conceal or change any notifications or statements regarding Intellectual Property Rights.

  • Price and Payment

  • Client shall pay the prices as stated in the Agreement. Unless otherwise expressly provided, all the prices stated are in euro and exclusive of VAT, other charges imposed by the authorities and administrative charges.

  • Client is entitled to adjust the applicable prices and rates in writing subject to advance notice of at least one month.

  • Amounts due shall be paid by Client in accordance with the payment terms that have been agreed or that are stated on the invoice. Client shall not be entitled to suspend any payments or to offset any amounts due.

  • Term and Termination

  • This Agreement shall enter into force upon acceptance by Client and shall remain in force for  an indefinite period of time. Either Party may terminate the Agreement by written notice of termination , taking into account a notice period of no less than one (1) months.

  • Upon termination of the Agreement, for whatever reason, any and all rights granted to Client under this Agreement will automatically terminate, and Client will immediately cease any and all use of the Service and the Intellectual Property Rights. 

  • In the event of termination (“ontbinding”), any performance already delivered and the payment obligations related to it will not be the subject of reversal. Amounts invoiced by Client before the termination in connection with anything that it has already performed or delivered in executing the Agreement will continue to be owed and will become immediately due and payable at the time of the termination.

  • Liability

  • Unless otherwise stipulated in this Agreement, UP4 Analytics‘ total, aggregate liability for attributably failing (in Dutch “toerekenbare tekortkoming”) to perform the Agreement, any unlawful act (in Dutch “onrechtmatige daad”) or otherwise is limited to direct damages only and to the total amounts paid to UP4 Analytics for the Service in the twelve (12) preceding months of that particular calendar year.

  • Direct damage shall solely mean:

    • reasonable expenses that Client would have to incur to make UP4 Analytics’ performance conform to the Agreement, unless the Agreement is rescinded (In Dutch “ontbonden”);

    • reasonable expenses incurred by Client to determine the cause and scope of the damage, insofar as the determination relates to direct damages; and

    • reasonable expenses incurred to prevent or mitigate damages, insofar as they relate to direct damages.

  • UP4 Analytics’ liability for damages other than direct damages, arising out of, or in connection with the  Agreement, such as, but not limited to indirect loss, consequential loss, loss and/or damage of Client Data/Reports, loss of profit and loss of revenue, loss of business, loss of anticipated savings, or any other similar financial loss or loss of goodwill or reputation, damage as a result of claims from third parties or other incidental, indirect, punitive or exemplary damages of any kind, is excluded. 

  • No right to damages shall exist unless Client notifies UP4 Analytics in writing of the damage promptly after it has arisen. Any claim for damages against UP4 Analytics shall become extinguished by the mere lapse of three (3) months after the claim has come into being.

  • Client indemnifies UP4 Analytics against all damage and costs, including – but not limited to – claims by third parties, collection costs, the statutory commercial interest, loss of profits, penalties incurred and legal fees, which UP4 Analytics incurs or which result from (i) a breach of the Agreement by Client, (ii) any use of the Service and/or Reports by Client or (iii) an unlawful act by Client.

  • Force Majeure

  • In the event of force majeure, there will be no attributable failure in the performance of the Agreement by UP4 Analytics.

  • Force majeure includes, among other things, employees on sick leave and/or absence of employees who are crucial to the supply of the Solution, interruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, failure on the part of UP4 Analytics’ suppliers, failure on the part of third parties engaged by UP4 Analytics, interruptions in the connection to the internet (whether or not due to a DDoS attack), hardware malfunctions, malfunctions in networks, including telecommunication networks, and other unforeseen circumstances.

  • If the force majeure continues for at least thirty (30) days, UP4 Analytics is entitled to terminate the Agreement without being obliged to pay any compensation for this termination.

  • Governing Law and Jurisdiction

 

  • This Agreement shall be exclusively governed by and construed in accordance with the laws of Estonia. 

  • All controversies, disputes or claims arising out of or relating to the Agreement or the breach thereof which shall not have been amicably settled by the parties shall be exclusively and finally settled by the civil court in Estonia. 

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