You may not access UpsideAI Products if you are UpsideAI’s direct competitor, except with UpsideAI’s prior written consent. In addition, you may not access UpsideAI’s Products for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY USING OR ACCESSING UpsideAI PRODUCTS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. DEFINITIONS. The following terms, when used in this Agreement, have the meanings set forth in this Section 1. Other terms are defined where they are used. Definitions are deemed to refer to the singular or plural, as the context requires. As used herein, “including” (and its variants) means “including without limitation” (and its variants).
1.1. “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” includes the power to direct the management or affairs and the ownership of 50% or more of the voting equity securities or other equivalent voting interests of an entity;
1.2. “API” means the Products’ application programming interface;
1.3. “Query” means a request sent to the search API and includes specific user-driven operations, such as submitting a search request, interacting with search facets, requesting subsequent results pages, sorting search results, exporting search results, and automatically-triggered operations, such as dynamically displaying relevant content to a user during data entry, but excludes Persistent Queries, Recommendations and user-driven operations where search-term suggestions are generated from letter-byletter typing by a User into a search box;
1.4. “Persistent Query” means a request sent to the search API with the proper parameter identifying it as a query for which results are not updated on each execution but rather periodically;
1.5. “Recommendation” means a request sent to the search API which is serviced by an event recommendation machine learning model. This model and how it is invoked is controlled by you via the administration tools on your UpsideAI account;
1.6. “User” means, with respect to Products priced per Users, an individual who has validated credentials to access and use the Products; or, with respect to Products priced per other billable units, an end-user of the Products. Users may include, for example, your Affiliates, employees, consultants, contractors, agents and website users, as applicable.
2. SCOPE OF THE AGREEMENT. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes any Orders (as defined in Section 3) and any other referenced policies and attachments. The benefit of this Agreement shall extend to your Affiliates; provided that you shall be responsible for placing Orders and distributing the Products to your Affiliates. You are responsible for compliance with this Agreement by all Users. All use of Products by you and your Users must be within the Scope of Use (as defined in Section 3) and solely for the benefit of you or your Affiliates.
This Agreement governs (a) UpsideAI’s commercially available downloadable software products or components (designated as “Onpremises” deployments) (“Software”), (b) UpsideAI’s hosted or cloud-based solutions (designated as “Cloud” deployments) (“Hosted Services”), and (c) any related support or maintenance services provided by UpsideAI (“Support and Maintenance”). Software and Hosted Services are referred to as “Products”. The Products and their permitted use are further described in UpsideAI’s standard documentation (“Documentation”). Section 4 (Software Terms) applies specifically to Software, and Section 5 (Hosted Services Terms) applies specifically to Hosted Services, but unless otherwise specified, other provisions of this Agreement apply to all Products. If you elect to purchase any services related to implementation and optimization of the Products, change management and business practice optimization, or education and training (collectively, “ Professional Services”), as indicated in a SOW (as such term is defined in the Professional Services Addendum), the provisions of the Professional Services Addendum shall apply.
3. ORDERS. UpsideAI’s Product ordering documentation (“Order”) and Documentation will specify your authorized scope of use for the Products, which may include number and type of Users, items, Queries, storage or capacity, numbers of licenses, copies or instances, or other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use. The term of each Software license and/or Hosted Services subscription (as applicable, “Term”) will be specified in each Order.
4. SOFTWARE TERMS. This Section 4 applies if Software components are licensed to you under any applicable Order.
4.1. Your License Rights. UpsideAI grants you a non-exclusive, non-sublicenseable and non-transferable other than in accordance with this Agreement license to install and use the Software during the applicable Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The Software requires a license key to operate, which will be delivered as described in Section 8.1 (Delivery).
4.2. Number of Instances. For each Software license that you purchase, you may install the number of production instance of the Software specified on the applicable Order on systems owned or operated by you (or your third-party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). You can also purchase licenses for certain of our Software offerings to allow you to deploy “non-production” instances, such as for development, staging or QA purposes. You and your Affiliates may make one copy of the Software exclusively for backup and disaster recovery purposes. You must obtain UpsideAI’s prior written approval to make any additional copies of the Software.
5. HOSTED SERVICES TERMS. This Section 5 applies to any Hosted Services under any applicable Order.
5.1. Access to Hosted Services. UpsideAI grants you a non-exclusive right to access and use the Hosted Services during the applicable Term in accordance with this Agreement, your applicable Scope of Use and the Documentation. You acknowledge that our Hosted Services are online, subscription-based products and that UpsideAI may make changes to the Hosted Services from time to time in accordance with UpsideAI’s then-current Support and Service Level Policy.
5.2. Subscription Term. The Hosted Services are provided on a subscription basis for the Term specified in your Order, which may be renewed upon agreement between the Parties at UpsideAI’s then-current rates, as set out forth in the applicable renewal Order.
5.3. Credentials. You must ensure that all Users keep their user IDs and passwords for the Hosted Services strictly confidential and do not share such information with any unauthorized person, when applicable. You are responsible for all actions taken using your accounts and passwords, and you agree to immediately notify UpsideAI of any unauthorized use of which you become aware. Subject to the Scope of Use indicated in the applicable Order, credentials may be reassigned by you.
5.5. Data Retention . UpsideAI shall delete Your Data within sixty (60) days of termination or expiration of your final Term. Upon your written request submitted to UpsideAI before the end of such data retention period, UpsideAI shall provide you with a copy of your Analytics Data in UpsideAI’s standard format
5.6. Security. UpsideAI implements commercially reasonable security procedures to help protect Your Data from security attacks, as set out in the UpsideAI Security Policy. You understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by UpsideAI, and UpsideAI is not responsible for any of Your Data lost, altered, intercepted or stored across such networks. UpsideAI cannot guarantee that its security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers. You may not, without the prior written consent of UpsideAI’s security officer; which consent shall not be unreasonably withheld: (i) conduct security, integrity, penetration, vulnerability or similar testing on the Hosted Services, or (ii) use any Hosted Services tool designed to automatically emulate the actions of a human user (commonly referred to as robots) in conjunction with the Hosted Services.
5.7. Removals and Suspension. UpsideAI has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if UpsideAI deems such action necessary based on your violation of this Agreement, UpsideAI may (1) remove your Index Data from the Hosted Services or (2) suspend your access to the Hosted Services. UpsideAI will alert you when UpsideAI takes such action and give you a reasonable opportunity to cure your breach, but if UpsideAI determines that your actions endanger the operation of the Hosted Services or other users, UpsideAI may suspend your access immediately without notice. You will continue to be charged for the Hosted Services during any suspension period.
6. SUPPORT AND MAINTENANCE. UpsideAI will provide the Support and Maintenance services described in the Support and Service Level Policy referred to in your Order. Support policies are available upon request and may be modified by UpsideAI from time to time to reflect process improvements or changing practices; provided that no such change will materially reduce the level of Support and Maintenance services set forth in the applicable policy.
7. API. You may, in accordance with the Documentation, modify the script of the Product search interface by utilizing the API provided by UpsideAI with the Product. You may also create and use a custom search interface through the API, provided however, that for NoCharge Products only you must maintain at the same locations in the search interface and result pages the unaltered “Powered by UpsideAI” icon which includes the UpsideAI logo and a link to the UpsideAI Web site (www.UpsideAI.com) and you may not relocate, remove or modify the previously mentioned icon from the search interface for any reason. You agree that the use of a UpsideAI trademark, logo or icon in a modified or new search interface does not give you any rights of ownership in such mark.
8. FINANCIAL TERMS.
8.1. Delivery. All deliveries under this Agreement will be electronic. Upon invoicing of the fees due under the applicable Order, UpsideAI will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email address specified in your Order. For the avoidance of doubt, you hereby acknowledge that you are responsible for installation of any Software and that UpsideAI has no further delivery obligation with respect to the Software after the delivery of the license keys.
8.2. Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars within thirty (30) days of your receipt of an invoice by UpsideAI. If any invoiced amount is not received by the due date, without limiting UpsideAI’s rights and remedies, (i) those charges may accrue at the rate of 1% per month or the maximum rate permitted by applicable Law, whichever is less and/or (ii) UpsideAI may condition future subscriptions on payment terms shorter than those provided in this Section. In the event a payment owed by you under an accurate invoice is overdue by thirty (30) days or more, UpsideAI shall have the further right, at its sole option, to suspend your access to the Product until payment is made. We will not exercise our rights under this Section if you are disputing the applicable fees reasonably and in good faith and are cooperating to resolve the dispute. Other than as expressly set forth this Agreement, all amounts are non-refundable, non-cancelable and noncreditable. If you add Users or other billable units in excess to your Scope of Use during your Term, UpsideAI will charge you for the increased number of Users or other billable units pursuant to the then-currently applicable rates in your next billing cycle.
8.3. Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the fees are incurred. To the extent that any such taxes or duties are payable by UpsideAI, you must pay to UpsideAI the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to UpsideAI any such exemption information, and UpsideAI will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
9. NO-CHARGE PRODUCTS. UpsideAI may offer certain Products to you at no charge, including free accounts and trial use (“No-Charge Products”). You may not use No-Charge Products for competitive analysis or similar purposes. UpsideAI may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. If you are participating in UpsideAI’s free 30-Day or longer term as agreed to by UpsideAI Trial (“Trial”), this Agreement lasts thirty (30) days or such other longer term as agreed to by UpsideAI from date of service authorization. At the end of the free Trial, if you choose not to purchase a UpsideAI Product, you will immediately cease all use of the Product. Any data you enter into the Product, and any customizations made to the Product by or for you will be permanently lost unless you purchase a license or a subscription to use the same Product as the one covered by the Trial prior to the expiration of such Trial. To the maximum extent permitted by applicable law, UpsideAI disclaims all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
10. LICENSE CERTIFICATIONS. You agree to provide, at UpsideAI’s request, a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. If you exceed your Scope of Use, UpsideAI may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to UpsideAI at law or equity, or under this Agreement.
11. OWNERSHIP AND FEEDBACK.
11.1. UpsideAI Technology. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. UpsideAI and its licensors retain all right, know-how, title and interest, including all intellectual property rights and trade secrets, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for UpsideAI (“UpsideAI Technology”).
11.2. Feedback. From time to time, you may submit comments, information, questions, data, ideas, description of processes, or other information to UpsideAI, including in the course of receiving Support and Maintenance, which UpsideAI may anonymize (such communications, when anonymized, constitute “Feedback”). UpsideAI may use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Feedback specifically excludes your Confidential Information, and nothing in this Agreement limits UpsideAI’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
11.3. Performance Data. Notwithstanding any other term of this Agreement, UpsideAI may access and use, and shall retain all right, title and interest in transactional and performance data related to use of the Products in an aggregated and anonymized form based upon Analytics Data, so long as such data does not reveal the identity or traits of any particular individual person. UpsideAI shall be permitted to use Analytics Data for its internal business purposes to measure and enhance the functionality and operation of the Hosted Services and associated UpsideAI products and services, including to develop and improve algorithms, models, and other tools for such products and services.
12. CONFIDENTIALITY. Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how, business, technical and financial information or any information specifically designated as confidential or that would reasonably be understood to be confidential or proprietary disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”). Any UpsideAI Technology, any commercial terms (including pricing) of this Agreement and any Order or Statement of Work (but not the mere existence of this Agreement) and any performance information relating to the Products shall be deemed Confidential Information of UpsideAI without any marking or further designation. Except as expressly authorized herein, the Receiving Party will use (and will ensure that its employees, Affiliates, agents, contractors and any approved third parties use) reasonable efforts (which shall be no less than the efforts used to protect its own confidential or proprietary information of a similar nature) to prevent the disclosure of any Disclosing Party’s Confidential Information for any purpose other than as authorized by this Agreement unless authorized by the Disclosing Party. The Receiving Party’s non disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such Confidential Information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
13. TERM AND TERMINATION.
13.1. Term. This Agreement is in effect for as long as you have a valid Term under an Order, unless sooner terminated as permitted in this Agreement.
13.2. Termination for Breach. Either Party may terminate this Agreement before the expiration of the Term if the other Party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either Party may also terminate the Agreement before the expiration of the Term if the other Party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. If you terminate the Agreement pursuant to this Section, UpsideAI will provide you with a refund of the prorated portion of the prepaid and unused fees for the Products that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.
13.3. Effect of Termination and Survival. Except where an exclusive remedy may be specified in this Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by Law, or otherwise. Once the Agreement terminates, you (and your Users) will no longer have any right to use or access any Products, or any information or materials that UpsideAI makes available to you under this Agreement, including UpsideAI Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third-party systems operated on your behalf) and provide written certification to UpsideAI that you have done so at our request. All provisions herein that, by their very nature, shall survive any termination or expiration of this Agreement will survive.
14. WARRANTY AND DISCLAIMER.
14.1. Mutual Representation. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, this Agreement and each Order is entered into by an agent of such Party with all necessary authority to bind it to the terms and conditions of this Agreement.
14.2. Warranty by UpsideAI.
14.2.1 Performance Warranty. UpsideAI warrants that the Products will perform in all material respects with UpsideAI’s then current specifications set forth in the Documentation during the Term (“Warranty Period”). UpsideAI warrants that Support and Maintenance will be provided in accordance with industry standards. For any breach of the above warranties, your exclusive remedy and UpsideAI’s entire liability shall be: (a) for UpsideAI to correct the Product errors that caused breach of the warranty; or, (b) if UpsideAI cannot correct such breach in a commercially reasonable timeframe, you may terminate your Order for the specific Product module that is in breach and receive a refund of the prorated amount of the fees you prepaid for such Product module that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.
14.2.2 Open Source Warranty. You acknowledge that certain components of the Products may be covered by so-called “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (“Open Source Components”). UpsideAI represents and warrants that the Products ordered pursuant an Order are not subject to any Open Source Components that would create an obligation for UpsideAI or you to make source code or data publicly available.
14.3. Warranty by You.
14.3.1 Data Warranty. You represent and warrant that (i) your authorized use of Hosted Services; (ii) all Your Data and its transfer to and use by UpsideAI as permitted under this Agreement is at all times compliant with all applicable local, state, federal and international laws and regulations, including privacy laws and associated regulations (“Laws”) and does not violate rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Unless otherwise agreed by the Parties, you represent and warrant that you shall not submit to the Hosted Services (or use the Hosted Services to collect): (i) any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as same can be amended, “HIPAA”) or any similar Laws; (ii) any information with respect to a payment card or relating to a payment card transaction as covered under the Payment Card Industry Data Security Standard (as same can be amended, “PCI DSS”); or (iv) any other information subject to regulation or protection under specific Laws such as the Gramm-Leach-Bliley Act (or related rules or regulations), (collectively, “Sensitive Data”). You also acknowledge that UpsideAI is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant or PCI DSS certified.
14.3.2 Restrictions. Except as otherwise expressly permitted in this Agreement, you represent and warrant that you shall not (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party; (b) use or incorporate the Products, disclose, create, use or knowingly allow use of a license code for the benefit of any third party; (c) use the Products to provide service bureau, timesharing services, or shared processing services other than for its own use; (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use; (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law; (f) publicly disseminate information regarding the performance of the Products; (g) use UpsideAI Products to circumvent the terms and conditions of any agreement binding you with a third-party supplier. The above restrictions are material to this Agreement and your failure to comply with any of them would constitute sufficient cause for termination.
14.4. Disclaimer. All No-Charge Products are provided “as is”. UpsideAI expressly disclaims all warranties and representations of any kind that are not expressly stated herein. The duration of the statutorily required warranties, if any, are hereby limited to the shortest period permitted by Law. UpsideAI will not be liable for problems inherent in use of the Internet or other systems outside of UpsideAI’s control. To the maximum extent permitted by Law, neither UpsideAI or its suppliers make any representation or warranty as to the reliability or accuracy of any Product or any of their content, or that: (a) the use of any Products will be secure, timely, uninterrupted or error-free; (b) the Products will operate in combination with any other system or data; (c) the Products will meet your requirements; (d) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted (e) errors or defects will be corrected; or (f) any servers that make Hosted Services available are free of viruses or other harmful components.
15. LIMITATION OF LIABILITY. To the maximum extent permitted by Law, (i) neither Party (nor its suppliers) shall be liable for any indirect, special, incidental or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort, strict liability or otherwise, even if informed on the possibility of such damages in advance; and (ii) neither Party’s aggregate liability to the other shall exceed the amount actually paid by you to UpsideAI for Products and Support and Maintenance in the twelve (12) months immediately preceding the claim. This Section does not apply to (1) amounts owed by you under any Orders, (2) either Party’s express indemnification obligations under this Agreement, (3) either Party’s gross negligence, or (4) either Party’s breach of Section 12 (Confidentiality).
16.1. Indemnity by UpsideAI. UpsideAI agrees to defend, indemnify, and hold you and your Affiliates, directors, officers and employees harmless from and against any demands, damages and costs awarded by a court of competent jurisdiction or agreed to settlement by UpsideAI (including reasonable attorneys’ fees) arising from a third-party claim alleging that (i) UpsideAI caused bodily injury (including death) or damages to real or tangible property; or (ii) a Product, when used as authorized under this Agreement, infringes any intellectual property rights (a “Claim”). UpsideAI’s indemnification obligations under subparagraph (ii) do not apply: (1) if the Product is modified by any third party, solely to the extent the alleged infringement is caused by such modification; (2) if the Product is used in combination with any non-UpsideAI product, software or equipment, solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Products; (4) to any Claim arising as a result of circumstances covered by your indemnification obligations in Section 16.2 (Indemnity by you)) or any third-party deliverables or components contained with the Products; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a Claim without UpsideAI’s prior written consent. This Section states our sole liability and your exclusive remedy for any infringement of intellectual property rights in connection with any Product or items provided by UpsideAI under this Agreement.
If your use of a Product is or is likely to be enjoined, if required by settlement, or if UpsideAI determines such actions are reasonably necessary to avoid material liability, UpsideAI may, at its sole option and discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund any prepaid and unused amounts for the terminated portion of the Term.
16.2. Indemnity by You. You will defend, indemnify and hold harmless UpsideAI, its directors, Affiliates officers and employees from and against any loss, cost, liability or damage, including attorneys’ fees, for which UpsideAI becomes liable arising from or relating to any Claim relating to your violation of Section 14.3.1 above.
16.3. Indemnification process. Either Party’s indemnification obligations are subject to the other Party receiving (i) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying Party to respond without prejudice); (ii) the exclusive right for the Indemnifying Party to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of the indemnified Party at its expense. The Indemnifying Party may not, except with prior written consent of the Indemnified Party, enter into any settlement of an indemnified Claim that imposes a direct financial liability on the Indemnified Party or includes an admission of fault by the Indemnified Party.
17. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND VENUE.
17.1. UpsideAI’s legal entity. Who you are contracting with under this Agreement (“UpsideAI”), where you should direct notices and what Law governs this Agreement, and which court has jurisdiction: Notices should be addressed to: UpsideAI Articial Intelligence Inc., a Canadian corporation 360 St-Jacques, Montreal, Qc H2Y 2N1, CANADA.
17.2. Governing Law; Venue. This Agreement will be construed in accordance with the applicable governing law above, without regard to choice or conflicts of law rules, and the Parties hereby consent to personal jurisdiction and venue therein. The Parties agree that this Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement regardless of when or where adopted.
17.3. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. If the Parties do not reach settlement within a period of sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The Parties will seek to mutually appoint an arbitrator. If the Parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each Party, and a third selected by the first two. Arbitration will take place in the city where the courts have jurisdiction under the Section 17.1. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
17.4. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 17.3 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
17.5. Export Restrictions. The Products might be subject to export restrictions by the United States government and other applicable regulations, as well as import restrictions by certain foreign governments, and you agree to comply with all applicable export and import Laws in your use of the Products. You shall not (and shall not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority; or (e) into any country that does not have copyright laws that will protect the rights of UpsideAI and any third-party software vendors from whom its licensing rights derive
17.6. Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered properly given or made if hand delivered, mailed first class mail (postage prepaid and return receipt requested) or sent by recognized courier service (e.g., Federal Express, DHL, UPS) (i) if to you: to the attention of “Legal” at the address listed in the Order (or to such other address as you may have designated by like notice forwarded to UpsideAI hereto), and (ii) if to UpsideAI: to the attention of “Legal” at the applicable address listed in the table above. UpsideAI may also provide notice to you via email or through your account.
18. GENERAL PROVISIONS.
18.1. Force majeure. Neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such Party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency (each a “Force Majeure Event”).
18.2. Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, except that no consent shall be required for an assignment of this Agreement by a Party pursuant to a change of control or a merger or sale of substantially all of such party’s assets or outstanding stock or to a wholly-owned subsidiary or Affiliate of such party, or to a wholly owned subsidiary or Affiliate of such party’s controlling (100%) owner, provided, that, if (a) the assignee is a competitor of the other party, or (b) the other Party reasonably determines that such assigning Party’s assignee will not have sufficient capital, assets, resources and expertise to perform its obligations hereunder, then such consent shall be required. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.
18.3. Changes to this Agreement. Except as permitted herein, this Agreement may not be modified except in writing signed by a duly authorized representative of each Party.
18.4. Entire Agreement and Severability. This Agreement is the entire agreement between you and UpsideAI relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held invalid by an arbitrator or court of competent jurisdiction, such provision will be severed, and the remainder of the Agreement will remain in full force and effect and will be construed to effectuate the Parties’ intent to the maximum extent possible.
18.5. Waiver. No failure or delay by the injured Party to this Agreement in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
18.6. Independent Parties. The Parties are independent contractors. This Agreement shall not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give on either Party the express or implied right, power or authority to create any duty or obligation of the other Party.
18.7. Language. This Agreement has been drawn up in English at the request of the Parties. Les parties ont convenu que la présente entente soit rédigée en anglais.