These General Terms are between UPIDO AG (Schweiz) (“UPIDO”) and the individual or entity identified below in the signature block. To place orders subject to these General Terms, at least one Schedule (as defined below) must be incorporated into these General Terms. If a term is relevant only to a specific Schedule, that term will apply only to that Schedule if and/or when that Schedule is incorporated into these General Terms.
1.1 “Master Agreement” refers to these General Terms (including any amendments thereto) and all Schedule(s) incorporated into the Master Agreement (including any amendments to those incorporated Schedule(s)). The Master Agreement governs Your use of the Products and Service Offerings ordered from UPIDO or an authorized reseller.
1.2 “Schedule” refers to all UPIDO Schedules to these General Terms as identified in Section 2.
1.3 “Separate Terms” refers to separate license terms that are specified in the Program Documentation, readmes or notice files and that apply to Separately Licensed Third Party Technology.
1.4 “Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of the Master Agreement.
1.5 “Service Offerings” refers to technical support, education, hosted/outsourcing services, cloud services, consulting, or other services which You have ordered. Such Service Offerings are further described in the applicable Schedule.
1.6 “You” and “Your” refers to the individual or entity that has executed these General Terms.
2. USE OF THE SERVICES
2.1 UPIDO will make the UPIDO services listed in Your order (the “Services”) available to You pursuant to the Master Agreement and Your order. Except as otherwise stated in the Master Agreement or Your order, You have the non-exclusive, worldwide, limited right to use the Services during the period defined in Your order, unless earlier terminated in accordance with the Master Agreement or Your order (the “Services Period”), solely for Your internal business operations. You may allow Your Users (as defined below) to use the Services for this purpose, and You are responsible for their compliance with the Master Agreement and Your order.
2.2 The Service Specifications describe and govern the Services. During the Services Period, we may update the Services and Service Specifications (with the exception of the Data Processing Agreement as described below) to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Content (as defined below). UPIDO updates to the Services or Service Specifications will not materially reduce the level of performance, functionality, security or availability of the Services during the Services Period of Your order.
2.3 You may not, and may not cause or permit others to:
(a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations;
(b) perform or disclose any benchmarking or availability testing of the Services;
(c) perform or disclose any performance or vulnerability testing of the Services without UPIDO’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, or remote access testing of the Services; or
(d) use the Services to perform cyber currency or crypto currency mining ((a) through
(e) collectively, the “Acceptable Use Policy”). In addition to other rights that we have in the Master Agreement and Your order, we have the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the policy.
3. FEES AND PAYMENTS SUBSCRIPTIONS
3.1. Fees for Services.
You agree to pay to UPIDO any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify UPIDO of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
Our prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.
(a) United States Sales Tax. If we have a legal obligation to pay or collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which, if your billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless you provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
- If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such document current and accurate.
- If we subsequently determine in our sole discretion that your tax exemption document is valid, we will refund the sales tax collected.
(b) Non-United States Sales Tax. If applicable, we will charge you VAT, GST or any other sales, consumption or use taxes that arise in connection with your purchases of UPIDO products unless you provide us with a tax identification number that entitles you to an exemption, a valid tax exemption certificate or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If you are located in a jurisdiction with multiple sales, consumption or use taxes, we may charge you the highest prevailing rate if your billing information is incomplete or inaccurate.
If you are required by law to withhold any Taxes from your payments to UPIDO, you must provide UPIDO with an official tax receipt or other appropriate documentation to support such payments.
3.4. Price Changes.
UPIDO may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. UPIDO will provide you with advance notice of any change in fees.
3.5. Overage Fees.
Unless otherwise stated, any overage fees incurred by you will be billed in arrears. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
4. MASTER AGREEMENT TERM AND APPLICABLE SCHEDULES
Orders may be placed under the Master Agreement for up to five years from the Effective Date. As of the Effective Date, the following Schedules are incorporated into the Master Agreement: Schedule C – Cloud Services & Schedule S – Services.
The Schedules set forth terms and conditions that apply specifically to certain types of UPIDO offerings which may be different than, or in addition to, these General Terms.
The purchase of any Cloud Service Offerings or other Service Offerings are all separate offers and separate from any other order for any Cloud Service and related Service Offerings You may receive or have received from UPIDO. You understand that You may purchase any Cloud Service and related Service Offerings independently of any other Cloud Service or Service Offerings. Your obligation to pay for (a) any Cloud Service and related Service Offerings is not contingent on performance of any other Cloud Service or Service Offerings or delivery of any other Services. You acknowledge that You have entered into the purchase without reliance on any financing or leasing arrangement with UPIDO or its affiliate.
6.1 UPIDO or its licensors retain all ownership and intellectual property rights to the Programs, Operating System, Integrated Software, Cloud Services and anything developed or delivered under the Master Agreement.
6.2 You may have access to Third Party Content through use of the Services. Unless otherwise stated in Your order, all ownership and intellectual property rights in and to Third Party Content and the use of such content is governed by separate third party terms between You and the third party.
6.3 You grant us the right to host, use, process, display and transmit Your Content to provide the Services pursuant to and in accordance with the Master Agreement and Your order. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by UPIDO to perform the Services.
6.4 You may not, and may not cause or permit others to:
(a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download or copy any part of the Services (including data structures or similar materials produced by programs);
(b) access or use the Services to build or support, directly or indirectly, products or services competitive to UPIDO; or
(c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by the Master Agreement or Your order.
7.1 If a third party makes a claim against either You or UPIDO (“Recipient” which may refer to You or UPIDO depending upon which party received the Service), that any information, design, specification, instruction, software, data, hardware, or material furnished by either You or UPIDO (“Provider” which may refer to You or UPIDO depending on which party provided the Service) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
- gives the Provider sole control of the defense and any settlement negotiations; and
- gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.
7.2 If the Provider believes or it is determined that any of the Service may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Service to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the Service and refund any fees the Recipient may have paid to the other party for it and, if UPIDO is the Provider of an infringing Program, any unused, prepaid technical support fees You have paid to UPIDO for the license of the infringing Program. If such issue materially affects UPIDO’s ability to meet its obligations under the relevant order, then UPIDO may, at its option and upon 30 days prior written notice, terminate the order.
7.3 In the event that the Material is Separately Licensed Third Party Technology and the associated Separate Terms do not allow termination of the license, in lieu of ending the license for the Material, UPIDO may end the license for, and require return of, the Program associated with that Separately Licensed Third Party Technology and shall refund any Program license fees You may have paid to UPIDO for the Program license and any unused, prepaid technical support fees You have paid to UPIDO for the Program license.
7.4 The Provider will not indemnify the Recipient if the Recipient alters the Service or uses it outside the scope of use identified in the Provider’s user documentation. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. UPIDO will not indemnify You for any portion of an infringement claim that is based upon the combination of any services not provided by UPIDO. Solely with respect to Separately Licensed Third Party Technology that is part of or is required to use a Service and that is used:
(a) in unmodified form;
(b) as part of or as required to use a Service; and
(c) in accordance with the license grant for the relevant Service and all other terms and conditions of the Master Agreement, UPIDO will indemnify You for infringement claims for Separately Licensed Third Party Technology to the same extent as UPIDO is required to provide infringement indemnification for the Service under the terms of the Master Agreement. UPIDO will not indemnify You for infringement caused by Your actions against any third party if the Service(s) as delivered to You and used in accordance with the terms of the Master Agreement would not otherwise infringe any third party intellectual property rights. UPIDO will not indemnify You for any intellectual property infringement claim(s) known to You at the time license rights are obtained.
7.5 This section provides the parties’ exclusive remedy for any infringement claims or damages.
8.1 If either of us breaches a material term of the Master Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the Master Agreement. If UPIDO terminates the Master Agreement as specified in the preceding sentence, You must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for Service Offerings received under the Master Agreement plus related taxes and expenses. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under the Master Agreement, You may not use those Service Offerings ordered.
8.2 If You have used a contract with UPIDO or an affiliate of UPIDO to pay for the fees due under an order and You are in default under that contract, You may not use Service Offerings that are subject to such contract.
8.3 Provisions that survive termination or expiration are those relating to limitation of liability, infringement indemnity, payment and others which by their nature are intended to survive.
9. FEES AND TAXES; PRICING, INVOICING AND PAYMENT OBLIGATION
9.1 All fees payable to UPIDO are due within 30 days from the invoice date. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Oracle must pay based on the Service Offerings You ordered, except for taxes based on UPIDO’s income. Also, You will reimburse UPIDO for reasonable expenses related to providing Service Offerings.
9.2 You understand that You may receive multiple invoices for the Service Offerings You ordered. Invoices will be submitted to You pursuant to UPIDO’s Invoicing Standards Policy.
10. SUSPENSION AND TERMINATION OF SERVICES
10.1. By You.
You can terminate your Subscription and delete your account at any time through your account management page. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately and you will not be charged again for that Subscription unless you purchase a new one. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons:
(a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing;
(b) a refund is required by law; or
(c) we, in our sole discretion, determine a refund is appropriate. For clarity, we will not grant a refund where you have used our Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.
10.2. By UPIDO.
UPIDO may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. UPIDO may terminate your Subscription for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. UPIDO may suspend performance or terminate your Subscription for any of the following reasons:
(a) you have materially breached these Terms and failed to cure that breach within 30 days after UPIDO has so notified you in writing;
(b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or
(c) you fail to pay fees for 30 days past the due date. Additionally, UPIDO may limit, suspend, or terminate the Services to you:
(i) if you fail to comply with these Terms,
(ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or
(iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, depending upon the reason, we will endeavor to give you advance notice and an opportunity to obtain a copy of your Content from that Service. However, there may be time sensitive situations where UPIDO may decide that we need to take immediate action without notice. UPIDO will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. UPIDO has no obligation to retain your Content upon termination of the applicable Service.
10.3. Further Measures.
If UPIDO stops providing the Services to you because you repeatedly or egregiously breach these Terms, UPIDO may take measures to prevent the further use of the Services by you, including blocking your IP address.
11. CHANGES AND UPDATES
11.1. Changes to Terms.
UPIDO may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the UPIDO website. If an amendment is material, as determined in UPIDO sole discretion, UPIDO will notify you by email. Notice of amendments may also be posted to UPIDO’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require UPIDO to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
11.2. Changes to Services.
UPIDO constantly changes and improves the Services. UPIDO may add, alter, or remove functionality from a Service it provides to you at any time without prior notice. UPIDO may also limit, suspend, or discontinue a Service provided to you at its discretion. If UPIDO discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from that Service. UPIDO may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
12.1 By virtue of the Master Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the Master Agreement. Confidential Information shall be limited to the terms and pricing under the Master Agreement and all information clearly identified as confidential at the time of disclosure.
12.2 A party’s Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the other party;
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
(d) is independently developed by the other party.
12.3 We each agree not to disclose each other’s Confidential Information to any third party other than those set forth in the following sentence for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party. We may disclose Confidential Information only to those employees or agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than under the Master Agreement. Nothing shall prevent either party from disclosing the terms or pricing under the Master Agreement or orders submitted under the Master Agreement in any legal proceeding arising from or in connection with the Master Agreement or disclosing the Confidential Information to a governmental entity as required by law.
12.4 To the extent You provide personal information to UPIDO as part of any Service Offerings You have ordered under the Master Agreement, UPIDO will comply with:
the relevant UPIDO privacy policies applicable to the Service Offerings
the applicable administrative, physical, technical and other safeguards, and other applicable aspects of system and content management available at http://www.oracle.com/us/corporate/contracts/; and
the applicable version of the Data Processing Agreement for Oracle Services (the “Data Processing Agreement”). The version of the Data Processing Agreement applicable to Your order is available at https://www.oracle.com/corporate/contracts/cloud-services/contracts.html#data-processing and is incorporated herein by reference. Your order for Service Offerings may also contain additional or more specific privacy terms.
13. ENTIRE AGREEMENT
13.1 You agree that the Master Agreement and the information which is incorporated into the Master Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable order, are the complete agreement for the Service Offerings ordered by You and supersede all prior or contemporaneous agreements or representations, written or oral, regarding such Service Offerings.
13.2 It is expressly agreed that the terms of the Master Agreement and any UPIDO order shall supersede the terms in any purchase order, procurement internet portal or any other similar non- UPIDO document and no terms included in any such purchase order, portal or other non- UPIDO document shall apply to the Service Offerings ordered. In the event of inconsistencies between the terms of any Schedule and these General Terms, the Schedule shall take precedence. In the event of any inconsistencies between the terms of an order and the Master Agreement, the order shall take precedence. The Master Agreement and orders may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted by authorized representatives of You and of UPIDO. Any notice required under the Master Agreement shall be provided to the other party in writing.
14. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. TO THE EXTENT PERMITTED BY LAW, UPIDO MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE MASTER AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF THE FEES YOU PAID UPIDO UNDER THE SCHEDULE GIVING RISE TO THE LIABILITY, AND IF SUCH DAMAGES RESULT FROM YOUR USE OF SERVICE OFFERINGS, SUCH LIABILITY SHALL BE LIMITED TO THE FEES YOU PAID UPIDO FOR THE DEFICIENT PRODUCT OR SERVICE OFFERINGS GIVING RISE TO THE LIABILITY.
Export laws and regulations of Switzerland and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern Your use of the Service Offerings deliverables provided under the Master Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, Product and/or materials resulting from Service Offerings (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
16. FORCE MAJEURE
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic, electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export, import or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Service Offerings and affected orders upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for Service Offerings ordered and delivered.
17. GOVERNING LAW AND JURISDICTION
The Master Agreement is governed by the laws of Switzerland and you and UPIDO agree to submit to the exclusive jurisdiction of, and venue in, the courts in Bern, Switzerland in any dispute arising out of or relating to the Master Agreement.
If You have a dispute with UPIDO or if You wish to provide a notice under the Indemnification section of these General Terms, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: UPIDO AG (Schweiz), Thunstrasse 11, BERN, 3112 Switzerland.
You may not assign the Master Agreement or give or transfer the Service Offerings or an interest in them to another individual or entity. If You grant a security interest in the Service Offerings deliverables, the secured party has no right to use or transfer the Service Offerings deliverables, and if You decide to finance Your acquisition of any Service Offerings, You will follow UPIDO’s policies regarding financing. The foregoing shall not be construed to limit the rights You may otherwise have with respect to third party technology or Separately Licensed Third Party Technology licensed under open source or similar license terms.
20.1 UPIDO is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
20.2 If any term of the Master Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Master Agreement.
20.3 Except for actions for nonpayment or breach of UPIDO’s proprietary rights, no action, regardless of form, arising out of or relating to the Master Agreement may be brought by either party more than two years after the cause of action has accrued.
20.4 Service Offerings deliverables are not designed for or specifically intended for use in nuclear facilities or other hazardous applications. You agree that it is Your responsibility to ensure safe use of Service Offerings deliverables in such applications.
20.5 If requested by an authorized reseller on Your behalf, You agree UPIDO may provide a copy of the Master Agreement to the authorized reseller to enable the processing of Your order with that authorized reseller.
20.6 You understand that UPIDO’s business partners, including any third party firms retained by You to provide consulting services, are independent of UPIDO and are not UPIDO’s agents. UPIDO is not liable for nor bound by any acts of any such business partner unless
(i) the business partner is providing services as a UPIDO subcontractor in furtherance of an order placed under the Master Agreement and
(ii) only to the same extent as UPIDO would be responsible for the performance of UPIDO resources under that order.
20.7 UPIDO may refer to You as an UPIDO customer of the ordered Service Offerings in sales presentations, marketing vehicles and activities.
20.8 By subscribing to the Last Mile Experts OOH Delivery Report 2021, you agree to receive UPIDO and Last Mile experts or associated companies’ communications, such as emails and newsletters. Should you wish to unsubscribe to these communications, you may do so at any time by clicking on the unsubscribe link. We do not share any personal data (such as name or email address) you provide to us when subscribing with any other organizations.