Last Updated: January 22, 2020
THESE TERMS OF SERVICE (“Agreement“) CONSTITUTES A BINDING CONTRACT BETWEEN UPRIGHT TECHNOLOGIES LTD. (“UpRight“) AND THE CUSTOMER (“Customer“, “User” or “you“) THAT SUBSCRIBES TO THE SERVICE (DEFINED BELOW).
BY SUBSCRIBING TO THE SERVICE, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date”):
1. THE SERVICES
Upright’s proprietary software known as “Upright Desktop” (“Software“) offers a software for monitoring and improving your posture and wellbeing while using your computer’s webcam (the “Webcam” and the “Services“). The Service may further provide you with a personal training program which guides you to sit correctly through a certain period of time, integration with Upright hardware, usage graphs and statistics and additional video content, and all reference to the Services shall also include any content appearing or made available on or in the Service.
The Service may include the sending of push-notifications, messages, emails, alerts via various means of communication. To the extent such means of communication will be sent via the Services, You can deactivate the push-notifications at any time by changing the notification settings on your device.
User acknowledges and agrees that in order to use the Service it is required to give the Software permission to access their Webcam.
2. SUBSCRIPTION RIGHTS AND RESTRICTIONS.
2.1. Subscription. Subject to the terms and conditions of this Agreement, UpRight grants Customer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right, during the Term (defined below), to access and use the Service solely for Customer’s internal end-use purposes (collectively, the “Subscription“). Use of the Service must be in accordance with the user guidance documentation.
2.2. Restrictions. As a condition to the Subscription, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) modify, alter, adapt, arrange, or translate the Service; (d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (e) remove, alter, or conceal any copyright, trademark, patent, or other proprietary rights notices displayed on or in the Service; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (g) make a derivative work of the Service, or use them to develop any service or product that is the same as (or substantially similar to) it; (h) use the Service for any purpose for which the Service is not intended and/or (i) infringe and/or violate any of this Agreement..
Updates. All references herein to the “Service” shall include any upgrade or update (such as a fix or patch) to or of the Service provided by or on behalf of UpRight under this Agreement (“Updates“). UpRight may from time to time provide Updates, but shall not be under any obligation to do so.
3.1. Fees. Customer agrees to pay all fees stated in the online web form submitted by Customer when subscribing to the Service (the “Order Form” and “Fees“), and in accordance to the applicable billing cycle (“Billing Cycle“) and other payment terms specified in the Order Form.
3.2. General. Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars via credit or debit card; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable Law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon UpRight ‘s net income.
4.1. Service. As between the parties, UpRight is, and shall be, the sole and exclusive owner of all rights, including all intellectual property rights in and to: (a) the Service; and (b) any and all improvements, derivative works, modifications, and/or customizations of/to the Service, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by UpRight to ensure and/or provide UpRight the ownership rights set forth in the preceding sentence.
4.2. Feedback and Statistical Data. In the event that Customer (or any person on Customer’s behalf) provides any suggestions or similar feedback regarding the Service and/or UpRight Content, or any part thereof (“Feedback“), and/or to the extent UpRight receives de-identified statistical (or similar) information or data regarding Customer’s use of the Service (“Statistical Data“), UpRight shall be entitled, in perpetuity, to use and commercially exploit such Feedback and Statistical Data without any obligation or restriction whatsoever.
4.3. Third Party Components. The Software may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components“). Your right to use such Third Party Components as part of, or in connection with, the Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components available at [https://www.uprightpose.com/cv_libraries_and_licenses.txt], as may be amended from time to time by UpRight, at its sole discretion. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. This Agreement does not apply to any Third Party Components accompanying or contained in the Software and UpRight disclaims all liability related thereto. You acknowledge that UpRight is not the author, owner or licensor of any Third Party Components, and that UpRight makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components. Under no circumstances shall the Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source“ or “publicly available“ software.
The User (the “Recipient“) may have access to certain non-public or proprietary information and materials of UpRight and/or its Affiliates (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, was in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such Law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it, and if requested, certify such erasure in a signed writing).
THE SERVICE, AND ALL OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY UPRIGHT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY UPRIGHT AND ITS LICENSORS;
UPRIGHT DOES NOT WARRANT THAT (I) THE USE AND OPERATION OF THE SERVICE OR THE SOFTWARE ARE OR WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERRORS, OR FREE OF VIRUSES, DEFECTS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS, (II) UPRIGHT WILL CORRECT ANY ERRORS OR DEFECTS IN THE SOFTWARE, (III) THE SOFTWARE WILL BE INTEROPERABLE OR COMPATIBLE WITH YOUR WEBCAM, OTHER SOFTWARE, HARDWARE, OR ANY EQUIPMENT, AND UPRIGHT AND UPRIGHT’S REPRESENTATIVES ARE NOT RESPONSIBLE FOR ANY LOSSES SUFFERED RESULTING FROM INTEROPERABILITY OR COMPATIBILITY PROBLEMS, AND/OR (IV) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. UPRIGHT AND UPRIGHT’S REPRESENTATIVES DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY, RELIABILITY OR THE QUALITY OF THE SOFTWARE, AND ARE NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE RELATED TO ANY CONTENT AND INFORMATION DISPLAYED WITHIN THE SOFTWARE.
THE SERVICE DOES NOT CONSTITUTE MEDICAL ADVICE OR PROFESSIONAL SERVICE. THE USER SHOULD ALWAYS CONSULT WITH A QUALIFIED PERSONAL MEDICAL ADVISOR. THE CONTENT ON THE SERVICE, INCLUDING ANY INFORMATION, MATERIAL, DATA AND THE RESULTS OF THE USER’S USE OF THE DEVICE, IS MADE AVAILABLE FOR PERSONAL USE ONLY, AND DOES NOT CONSTITUTE PROFESSIONAL MEDICAL ADVICE.
NEITHER THE SOFTWARE OR THE SERVICES ARE NOT FDA APPROVED.
UPRIGHT DOES NOT, EITHER EXPRESSLY OR IMPLICITLY, ENDORSE, RECOMMEND OR IN ANY MANNER ASSUME ANY RESPONSIBILITY FOR ANY LOSS, INJURY AND/OR DAMAGES INCURRED AS A RESULT, OR IN CONNECTION WITH, THE USE OF THE SERVICE AND/OR THE SOFTWARE AND/OR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE USE OF THE SERVICE. WE DO NOT GUARANTEE THAT ANY OF THE USERS’ NEEDS WILL BE FULFILLED.
7. LIMITATION OF LIABILITY
7.1. EXCEPT FOR WILLFUL MISCONDUCT, IN NO EVENT SHALL UPRIGHT BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; ANY LOSS OF, THEFT OF, OR DAMAGE TO DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
7.2. THE COMBINED AGGREGATE LIABILITY OF UPRIGHT AND ALL UPRIGHT’S AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY USER (IF ANY) TO UPRIGHT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
7.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.
Customer agrees to indemnify and hold harmless UpRight, its affiliates, and/or any of their respective directors, officers, employees, or representatives (each, an “Indemnitee“) for and against any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s); and any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties), that is based upon or arises from Customer’s use of the Service or Customer’s breach of any provision of this Agreement.
9. TERM AND TERMINATION
9.1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the Subscription term stated in the Order Form (the “Initial Term“), following which this Agreement shall automatically renew for successive periods of equal length (each, a “Renewal Term“, and together with the Initial Term, the “Term“).
9.2. Termination by UpRight for Convenience. UpRight reserves the right to terminate this Agreement for convenience, at any time, and without notice or obligation to Customer, and Customer agrees that UpRight shall have no liability to Customer for any such termination; provided, however, that if terminated by UpRight under this paragraph, then UpRight shall refund to Customer a pro-rated amount of any pre-paid and unused Fees based on the remainder of the then-current Initial Term or Renewal Term (as the case may be).
9.3. Termination by UpRight for Cause. UpRight may terminate this Agreement immediately upon notice to Customer (which may be via email or via the functionality of the Service) if Customer commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach).
9.4. Termination by Customer. Customer may terminate this Agreement for convenience, for cause, or for any other reason, at any time, via the functionality offered via the Service. In such case, termination will take effect at the end of the then-current Billing Cycle (and until that date Customer will still be able to use the Service), and Customer will not be charged for the subsequent Billing Cycle. For the avoidance of doubt, any pre-paid Fees will not be refunded. If Customer objects to any provision of this Agreement, or becomes dissatisfied with the Service in any way, Customer agrees that its sole remedy, and UpRight’s sole obligation liability, is for Customer to terminate this Agreement as aforementioned
10. CONSEQUENCES OF TERMINATION; SURVIVAL
Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement the Subscription will automatically terminate and be deemed revoked, and Customer will immediately lose all access to, and use of, the Service; and Customer shall promptly pay any unpaid amounts that are outstanding as of termination.
Sections 4 (Ownership) through (Miscellaneous) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination.
11. GOVERNING LAW; JURISDICTION AND VENUE
This Agreement (including without limitation its validity and interpretation) shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The courts located in Tel Aviv-Jaffa, Israel shall have exclusive jurisdiction over any Dispute (defined below), and the parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue.
Regardless of any Law to the contrary, any claim or cause of action arising under, or otherwise in connection with, this Agreement must be filed within ONE (1) YEAR after such claim or cause of action arose, or else Customer agrees that such claim or cause of action will be barred forever.
12.1. Entire Agreement. This Agreement represents the entire agreement between UpRight and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and UpRight with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the UpRight website. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Order Form on the other hand, the former shall prevail (unless the Order Form expressly overrides a provision herein). The Section headings in this Agreement are for convenience of reading only, and shall not to be used or relied upon for interpretive purposes.
12.2. Modifications to Agreement. UpRight may, from time to time and in its sole discretion, modify the terms and conditions of this Agreement, with notice to Customer in accordance with Section 12.812.8 (Notices). Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your Subscription and will automatically apply as of the next Renewal Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Laws, or as necessary for new features) UpRight may specify that such modifications become effective during Customer’s then-current Term. If the effective date of a modification is during Customer’s then-current Term, and the modification is material and adverse (that is, it expands Customer’s obligations and liabilities in a material way) and Customer objects to the modification, then, as Customer’s sole remedy, and UpRight ‘s sole obligation and liability, Customer may terminate the Agreement upon written notice to UpRight and receive a pro-rated refund of any pre-paid Fees hereunder based on the remaining period of the then-current Initial Term or Renewal Term (as the case may be); provided, however, that in order to exercise this right, Customer must provide UpRight with written notice of its objection and termination (which notice must include an explicit reference to the modification to which Customer objects) within thirty (30) days of UpRight ‘s notice of the modification.
12.3. Age Representation. Customer represents that it is at least thirteen (13) years old, but in any event of a legal age to form a binding contract. Children under the age of thirteen (13) are not permitted to purchase a Subscription or submit an Order Form. If Customer is between thirteen (13) and eighteen (18) years old, Customer’s review of (and any performance under) this Agreement must involve Customer’s parent or guardian.
12.4. Assignment. UpRight may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer.
12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
12.6. Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
12.7. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by UpRight, the writing must be duly signed by an authorized representative of UpRight), and shall be valid only in the specific instance in which given.
12.8. Notices. Customer agree that UpRight may send Customer notices by email, via Customer’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Customer, Customer agrees to send all notices to UpRight to: [email protected]