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Legal

Terms and conditions

This Platform Terms and Conditions (this “Agreement”) is made and entered into by and between UP42 GmbH, with principal office at Umspannwerk, Ohlauer Str. 43, Kreuzberg, 10557 Berlin, Germany (“UP42”) and the legal entity set forth in the Account Information (“Customer”) which shall be acting in a professional capacity. It governs Customer’s access to and use of the Platform Services (as defined below) and takes effect on the date of its acceptance by Customer (the “Effective Date”). Customer represents being lawfully able to enter into contracts and having legal authority to bind Customer’s entity.

1 ACCESS TO AND USE OF THE PLATFORM SERVICES

1.1    Customer can access and use the Platform Services in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Platform Services. Customer undertakes to comply with the terms of this Agreement and all laws, rules and regulations applicable to Customer’s use of the Platform Services.

1.2    To access the Platform Services, Customer must have an UP42 Account associated with a valid email address and a valid form of payment. Customer will only create one account per email address.

1.3    Third-Party Content present on the UP42 Website may be used by Customer at Customer’s election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.

2 MODIFICATIONS

2.1    The UP42 Website will host a range of Services and Third-Party Content which will evolve and change from time to time. UP42 cannot not guarantee the availability of the Services hosted (including APIs) or of Third-Party Content on the UP42 Website.

2.2    UP42 may modify this Agreement, change or discontinue any Service (including any policies and Service Levels Agreements) at any time by notifying Customer in accordance with Section (a), provided that (i) UP42 will provide at least 30 days’ advance notice prior to the effective date of such modifications (“Modifications Effective Date”) and (ii) Customer agrees to such modifications.

2.3    If Customer (i) does not object to such modifications in accordance with Section (b) within a period of 15 days after the date of the notification according to Section 2.2 and/or (ii) continues to use the Platform Services after the Modifications Effective Date, Customer will be deemed to be bound by the modified terms as of the Modifications Effective Date.

2.4    If Customer objects against the modifications according to Section 2.3, UP42 will be entitled to terminate the Agreement with 10 days’ advance notice to the Modifications Effective Date.

3 SECURITY – DATA PROTECTION

3.1    Without limiting Section 10.1 or Customer obligations under Section 4.2, UP42 will implement reasonable and appropriate measures designed to help Customer secure Customer Content against accidental or unlawful loss, access or disclosure.

3.2    Customer Content will be stored in Germany. UP42 will not access or use Customer Content except as necessary to maintain or provide the Platform Services, or as necessary to comply with the law or a binding order of a governmental body. UP42 will not (a) disclose Customer Content to any government or third party; except in each case as necessary to comply with the law or a binding order of a governmental body. UP42 will only use Customer Account Information in accordance with the Privacy Policy, and Customer consent to such usage. The Privacy Policy does not apply to Customer Content.

3.3    We may process Service Attributes in Germany (i) to provide billing and administration services and (ii) to provide support services and investigate fraud, abuse or violations of this Agreement.

4 CUSTOMER’S RESPONSIBILITIES

4.1    Customer is responsible for all activities that occur under Customer Account, regardless of whether the activities are authorized by Customer or undertaken by Customer, Customer’s employees or a third party (including Customer’s contractors, agents or End Users). UP42and its affiliates are not responsible for unauthorized access to Customer Account.

4.2    Customer will ensure that Customer Content and Customer and End Users’ use of Customer Content or the Platform Services will not violate any of the Policies or any applicable law. Customer are solely responsible for the development, content, operation, maintenance, and use of Customer Content.

4.3    Customer is responsible for properly configuring and using the Platform Services and otherwise taking appropriate action to secure, protect and backup Customer Accounts and Customer Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Customer Content from unauthorized access and routinely archiving Customer Content.

4.4    UP42 log-in credentials and private keys are for Customer internal use only and Customer will not sell, transfer or sublicense them to any other entity or person, except that Customer may disclose Customer private key to Customer agents and subcontractors performing work on Customer’s behalf.

4.5    Where Customer permits, assists or facilitates such action, Customer will be deemed to have taken any action by any person or entity related to this Agreement, Customer Content or use of the Platform Services. Customer is responsible for End Users’ use of Customer Content and the Platform Services. Customer will ensure that all End Users comply with obligations mirroring those of Customer under this Agreement and that the terms of Customer’s agreements with each End User are consistent with this Agreement. If Customer becomes aware of any violation of Customer’s obligations under this Agreement caused by an End User, Customer will immediately suspend access to Customer Content and the Platform Services by such End User. UP42 does not provide any support or services to End Users, unless UP42 has a separate agreement with Customer or an End User obligating UP42 to provide such support or services.

5 FEES, PAYMENT

5.1    UP42 calculates and bills fees on a monthly basis. Customer will pay UP42 the applicable fees and charges for use of the Platform Services as described on the UP42 Website using one of the payment methods UP42 supports.

5.2    Fees will be billed on a monthly basis and will be due for payment within 10 days upon the invoice date. Receipt by UP42 will be decisive. UP42 may charge Customer interest at the rate of 9 percentage points above the applicable base interest rate, as published by the German Federal Bank, per year on all late payments.

5.3    All amounts payable by Customer under this Agreement will be paid to UP42 without setoff, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be posted on the UP42 Website, unless UP42 expressly states otherwise in a notice; if Customer orders such new Service or new feature of a Platform Service, the then published fees will apply.

5.4    UP42 may increase or add new fees for any existing Service Customer is using in accordance with the modification procedure set out in Section 2.

5.5    Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. All fees payable by Customer are exclusive of VAT. UP42 may charge and Customer will pay applicable VAT that UP42 is legally obligated or authorized to collect from Customer. Customer will provide such information to UP42 as reasonably required to determine whether UP42 is obligated to collect VAT from Customer. UP42 will not collect, and Customer will not pay, any VAT for which Customer furnishes UP42 a properly completed exemption certificate or a direct payment permit certificate for which UP42 may claim an available exemption from such VAT. All payments made by Customer to UP42 under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by UP42 is equal to the amount then due and payable under this Agreement. UP42 will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

6 TEMPORARY SUSPENSION

6.1    UP42 may suspend Customer or any End User’s right to access or use any portion or all of the Platform Services immediately upon notice to Customer if UP42 determines:

  • (a) Customer or an End User’s use of the Platform Services:
  • (a) poses a security risk to the Platform Services or any third party,
  • (b) could adversely impact UP42 systems, the Platform Services or the systems or Content of any other UP42 customer,
  • (c) could subject UP42, UP42 affiliates, or any third party to liability, and/or
  • (d) could be fraudulent;
  • (b) Customer or any End User is in breach of this Agreement;
  • (c) Customer is in delay of Customer’s payment obligations under Section 5; or
  • (d) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.2    If UP42, according to Section 6.1, suspends Customer’s right to access or use any portion or all of the Platform Services:

  • (a) Customer remains responsible for all fees and charges Customer incurs during the period of suspension; and
  • (b) Customer will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

7 TERM AND TERMINATION

7.1    The Term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either Party to the other must include a Termination Date that complies with the notice periods in Section 7.2.

7.2 Termination for Convenience.

  • (a) Customer may terminate this Agreement for any reason by providing UP42 notice and closing Customer account for all Services for which UP42 provides an account closing mechanism. UP42 may terminate this Agreement for any reason by providing Customer at least 30 days’ advance notice according to Section (a).

7.3 Termination for Cause.

  • (a) Either Party may terminate this Agreement for cause if the other Party is in material breach of this Agreement and the material breach remains uncured for a period of 7 days from receipt of notice by the other Party. No later than the Termination Date, Customer will close Customer account.
  • (b) UP42may also terminate this Agreement immediately upon notice to Customer:
  • (a) for cause if UP42 has the right to suspend under Section 6.1,
  • (b) if UP42 relationship with a third party partner who provides software or other technology UP42 uses to provide the Platform Services expires, terminates or requires UP42 to change the way UP42 provides the software or other technology as part of the Platform Services, and/or
  • (c) in order to comply with any relevant request of any governmental entity.

7.4    The termination rights set forth under section Section 2.4 and Section 5.1 s. 5 remain unaffected.

7.5 Effect of Termination.

  • (a) Upon the Termination Date:
  • (a) except as provided in Section (b), all Customer rights under this Agreement immediately terminate;
  • (b) Customer remains responsible for all fees and charges Customer has incurred through the Termination Date and is responsible for any fees and charges Customer incurs during the post-termination period described in Section (b);
  • (c) Customer will immediately return or, if instructed by UP42, destroy all UP42 Content in Customer’s possession; and
  • (d) Sections 4.1, 5, 7.5, 8 (except the license granted to Customer in Section 8.3, 9, 10, 13 and 14 will continue to apply in accordance with their terms.
  • (b) Post-Termination. Unless UP42 terminates Customer’s use of the Platform Services pursuant to Section (b), during the 30 days following the Termination Date:
  • (a) UP42 will not take action to remove from the UP42 systems any of Customer Content as a result of the termination; and
  • (b) UP42 will allow Customer to retrieve Customer Content from the Services only if Customer has paid all amounts due under this Agreement.
  • (c) For any use of the Services after the Termination Date, the terms of this Agreement will apply and Customer will pay the applicable fees at the rates under Section 5.

8 INTELLECTUAL PROPERTY RIGHTS AND LICENSE

8.1    Except as provided in this Section 8, UP42 obtains no rights whatsoever under this Agreement from Customer (or Customer’s licensors) to Customer Content. Customer consents to UP42use of Customer Content for the purpose of providing the Platform Services to Customer and any End Users.

8.2    Customer represents and warrants to UP42 (Garantie) that:

  • (a) Customer or Customer’s licensors own all right, title, and interest in and to Customer Content and Suggestions and
  • (b) Customer has all rights in Customer Content and Suggestions necessary to grant the rights contemplated by this Agreement.

8.3    Subject to the terms of this Agreement, UP42 grants Customer a limited, revocable, non- exclusive, non-sublicensable, non-transferrable license to access and use the Services solely in accordance with this Agreement.

8.4    Except as provided in Section 8.3, Customer obtain no rights under this Agreement from UP42, UP42 affiliates or UP42 licensors to the Platform Services, including any related intellectual property rights.

8.5    UP42 Content and Third Party Content may be provided to Customer under a separate agreement and/or a separate license. In the event of a conflict between this Agreement and any separate agreement and/or separate license, the separate agreement and/or separate license will prevail with respect to the UP42Content or Third Party Content that is the subject of such separate agreement and/or separate license.

8.6    Neither Customer nor any End User will use the Platform Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Customer nor any End User will, or will attempt to:

  • (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Platform Services (except to the extent Content included in the Platform Services is provided to Customer under a separate license that expressly permits the creation of derivative works),
  • (b) reverse engineer, disassemble, or decompile the Platform Services or apply any other process or procedure to derive the source code of any software included in the Platform Services, except to the extent applicable law, such as Section 69e of the German Copyright Act (Urheberrechtsgesetz) doesn’t allow this restriction,
  • (c) access or use the Platform Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or
  • (d) resell or sublicense the Platform Services.

8.7    If Customer provides any Suggestions to UP42 or UP42 affiliates, UP42 and UP42 affiliates will be entitled to use the Suggestions without restriction. Customer hereby irrevocably assigns to UP42 all right, title, and interest in and to the Suggestions and agrees to provide UP42 any assistance UP42 requires to document, perfect, and maintain UP42 rights in the Suggestions.

9 INDEMNIFICATION

9.1    With regard to any third party claim raised against Customer for infringement or alleged infringement of intellectual property rights in relation to the use of the Platform Services, and subject to the limitations in this Section 9, UP42 will defend Customer and Customer’s employees, officers, and directors against such third party claim and will pay the amount of any adverse final judgment or settlement.

9.2    With regard to any third party claim raised against UP42 for infringement or alleged infringement of intellectual property rights by the Customer Content, and subject to the

limitations in this Section 9, Customer will defend UP42, its affiliates, and their respective employees, officers, and directors against any such third party claim and will pay the amount of any adverse final judgment or settlement.

9.3    Neither Party will have obligations or liability under this Section 9.1 arising from infringement by combinations of the Services or Customer Content, as applicable, with any other product, service, software, data, content or method. In addition, UP42 will have no obligations or liability arising from Customer or any End User’s use of the Platform Services after UP42 has notified Customer to discontinue such use. The remedies provided in this Section 9.1 are the sole and exclusive remedies for any third party claims of infringement or misappropriation of intellectual property rights by the Platform Services or by Customer Content.

9.4    For any claim covered by Section 9.1, UP42 will, at its election, either:

  • (a) procure the rights to use that portion of the Platform Services alleged to be infringing,
  • (b) replace the alleged infringing portion of the Platform Services with a non-infringing alternative,
  • (c) modify the alleged infringing portion of the Platform Services to make it non-infringing, or
  • (d) terminate the allegedly infringing portion of the Platform Services or this Agreement.

9.5    Customer will defend, indemnify, and hold harmless UP42, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third party claim concerning:

  • (a) Customer or any End Users’ use of the Platform Services (including any activities under Customer UP42 account and use by Customer employees and personnel);
  • (b) breach of this Agreement or violation of applicable law by Customer, End Users or Customer Content; or
  • (c) a dispute between Customer and any End User.

9.6    Customer will reimburse UP42 for reasonable attorneys’ fees, as well as UP42employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in Section 9.2 above at UP42 then-current hourly rates.

9.7    No provision in this Section 9 will limit the warranties under Section 8.2.

9.8    Any right to indemnification under this Section 9 will apply only if the Party seeking defence or indemnity:

  • (a) gives the other Party prompt written notice of the claim,
  • (b) permits the other Party to control the defence and settlement of the claim, and
  • (c) reasonably cooperates with the other Party (at the other Party’s expense) in the defence and settlement of the claim. In no event will a Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.

9.9    No provision in this Section 9 will limit the Parties’ liability beyond the limitations of liability in Section 10.

10 WARRANTIES; LIMITATIONS OF LIABILITY

10.1    Warranties. The Platform Services are provided “as is”. Except to the extent prohibited by law, or to the extent any statutory rights apply that cannot be excluded, limited or waived, UP42and its affiliates and licensors:

  • (a) make no representations or warranties (Garantie) of any kind, whether express, implied, statutory or otherwise regarding the service offerings or the Third-Party Content, and
  • (b) disclaim all warranties, including any implied or express warranties (Beschaffenheitsvereinbarungen):
  • (a) of merchantability, satisfactory quality, fitness for a particular purpose, non- infringement, or quiet enjoyment,
  • (b) arising out of any course of dealing or usage of trade,
  • (c) that the service offerings or Third-Party Content will be uninterrupted, error free or free of harmful components, and
  • (d) that any content will be secure or not otherwise lost or altered.

10.2    If the availability of the Platform Services should be below the service levels agreed in the Service Level Agreement, Customer’s sole remedy will be as stated in the Service Level Agreement. Any further liability of UP42 according to Section 10.3 remains unaffected.

10.3    Limitations of liability. UP42 will be liable for Losses under the terms of this Agreement only in accordance with the provisions set out in Sections (a) through (f).

  • (a) UP42 will be unrestricted liable for Losses caused intentionally or with gross negligence by UP42, its legal representatives (Organe) or senior executives (leitende Angestellte) and for Losses caused intentionally by other assistants in performance (Erfüllungsgehilfen); in respect of gross negligence of other assistants in performance UP42 liability will be as set forth by the provisions for simple negligence in Section (d) below.
  • (b) UP42 will be unrestricted liable for death, personal injury or damage to health caused by the intent or negligence of UP42, its legal representatives or assistants in performance.
  • (c) UP42 will be liable for Losses arising from the lack of any warranted characteristics (garantierte Beschaffenheit) up to the amount which is covered by the purpose of the warranty and which was foreseeable for UP42 at the time the warranty was given.
  • (d) UP42 will be liable for Losses caused by the breach of its essential contractual obligations (Kardinalpflichten) by UP42, its legal representatives or assistants in performance. Essential obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Customer may rely.
  • (e) If UP42 breaches its essential contractual obligations through simple negligence, UP42 liability will be limited to the amount Customer actually paid UP42 under this Agreement for the Platform Services during the 12 months before the liability arose.
  • (f) UP42 will be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
  • (g) Any liability of UP42 beyond the regulations of this Section 10.3 will be excluded.
  • (h) Any liability under the German Product Liability Act (Produkthaftungsgesetz) will remain unaffected and unlimited.
  • (i) No provision of this Section 10.3 will limit UP42 liability beyond the maximum limitations allowed by applicable laws.

11 CONFIDENTIALITY

11.1    Customer may use UP42 Confidential Information only in connection with Customer’s use of the Platform Services as permitted under this Agreement.

11.2    Customer will not disclose UP42 Confidential Information during the Term or at any time during the 5-year period following the end of the Term.

11.3    Customer will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of UP42 Confidential Information, including, at a minimum, those measures Customer takes to protect Customer’s own confidential information of a similar nature.

11.4    Customer will not issue any press release or make any other public communication with respect to this Agreement or Customer use of the Platform Services.

12 GOVERNING LAW

12.1    The laws of the Federal Republic of Germany, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between Customer and UP42. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

12.2    Any dispute arising from or in connection with this Agreement or the fulfilment thereof will be exclusively adjudicated in the Courts of Hamburg, Germany and Customer consents to this exclusive jurisdiction and venue.

12.3    Notwithstanding the foregoing UP42 and Customer both agree that UP42 may bring suit against Customer before the court at any of Customer’s business seats and/or at the court where any breach of this Agreement or infringement of UP42 rights occurred.

13 MISCELLANEOUS

13.1    Customer will not assign or otherwise transfer this Agreement or any of Customer’s rights and obligations under this Agreement, without UP42’s prior express written consent. Any assignment or transfer in violation of this Section 13.1 will be void.

13.2    UP42may assign this Agreement without Customer’s consent:

  • (a) in connection with a merger, acquisition or sale of all or substantially all of UP42assets, or
  • (b) to any affiliate in the meaning of Sections 15 ff. German Stock Companies Act (Aktiengesetz); and effective upon such assignment, the assignee is deemed substituted for UP42 as a Party to this Agreement and UP42 is fully released from all of its obligations and duties to perform under this Agreement.

Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective permitted successors and assigns.

13.3    This Agreement incorporates the Policies by reference and is the entire agreement between Customer and UP42 regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and UP42, whether written or verbal, regarding the subject matter of this Agreement.

13.4    UP42 will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision:

  • (a) submitted by Customer in any order, receipt, acceptance, confirmation, correspondence or other document,
  • (b) related to any online registration, response to any request for bid, request for proposal, request for information, or other questionnaire, or
  • (c) related to any invoicing process that Customer submits or requires UP42 to complete. (d) If the terms of this document are inconsistent with the terms contained in any Policy,the terms contained in this document will control, except that the Service Terms will control over this document.

13.5    Force Majeure. UP42 and UP42 affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond UP42 reasonable control, including acts of nature, labour disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

13.6    Trade Compliance. In connection with this Agreement, each Party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Platform Services, including transferring and processing of Customer Content and the provision of Customer Content to End Users. Customer is advised that the products and/or services available on the platform may be subject to government export regulations. Accordingly the Customer agrees that no product and/or service will be exported from the territory where payment is received for the product and/or service without obtaining the prior approval in writing of all regulatory authorities at no cost to UP42. Customer represents and warrants that Customer and Customer’s financial beneficiaries, or any party that owns or controls Customer or Customer financial beneficiaries, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government, the European Union or its Member States, or other applicable government authorities.

13.7    Independent Contractors. UP42 and Customer are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

13.8    Non-Exclusive Rights. Both Parties reserve the right:

(a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other Party, and

(b) to assist third party developers or systems integrators who may offer products or services which compete with the other Party’s products or services. Customer will not misrepresent the relationship between UP42 and Customer (including by expressing or implying that UP42 support, sponsor, endorse, or contribute to Customer or Customer business endeavours). Customer will not imply any relationship or affiliation between UP42 and Customer except as expressly permitted by this Agreement.

13.9    Language. All communications and notices made or given pursuant to this Agreement must be in the English language.

13.10 Notices.

  • (a) To Customer. UP42 may provide any notice to Customer under this Agreement by sending a message to the email address then associated with Customer Account. It is Customer’s responsibility to keep Customer’s email address current. Customer will be Customer’s Account when UP42 sends the email, whether or not Customer actually receives the email.
  • (b) To UP42. To give UP42 notice under this Agreement, Customer must contact UP42 by personal delivery, overnight courier or registered or certified mail to the mailing address listed above or by sending a message to the following email address: support@up42.com. UP42 may update the address for notices to UP42 by sending a message to the email address then associated with the Customer Account; it is Customer’s responsibility to keep Customer’s email address current.

13.11    No Third-Party Effect. Except as set forth in Section 9, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.12    No Waiver. The failure by UP42 to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit UP42 right to enforce such provision at a later time. All waivers by UP42 must be in writing to be effective (Section 126(1) of the German Civil Code – Bürgerliches Gesetzbuch).

13.13    Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. In such case the Parties will cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid or unenforceable provision. The above will apply accordingly to the closing of any unintended gaps in the Agreement.

14 DEFINITIONS

Account Information” means information about Customer provided to UP42 in connection with the creation or administration of Customer’s UP42 Account. Account Information includes names, usernames, phone numbers, email addresses and billing information associated with Customer UP42 account.

API” means an application program interface.

Content” means software (including machine images), data, text, audio, video or images, in particular APIs.

Customer Content” means Content that Customer or any End User transfers to UP42 for processing, storage or hosting by the Services in connection with Customer UP42 Account and any computational results that Customer or any End User derives from the foregoing through their use of the Services.

Documentation” means the user guides (in each case exclusive of content referenced via hyperlink) for the Services located at https://www.UP42.com (and any successor or related locations designated by UP42), as such user guides may be updated by UP42 from time to time.

End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Customer Content; or (b) otherwise accesses or uses the Platform Services under Customer Account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own UP42 account, rather than under Customer Account.

UP42 Confidential Information” means all non-public information disclosed by UP42, UP42 affiliates, business partners or UP42or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. UP42 Confidential Information includes: (a) non-public information relating to UP42 or UP42 affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that UP42 is obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between Customer and UP42 or UP42 affiliates. UP42 Confidential Information does not include any information that: (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to Customer at the time of Customer’s receipt from UP42; (c) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (d) can be shown by documentation to have been independently developed by Customer without reference to the UP42 Confidential Information.

UP42 Content” means Content UP42 or any of its affiliates may, on the basis of a separate agreement and/or a separate license, make available in connection with the Services or on the UP42 Website, including APIs; Documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by UP42 personnel). UP42 Content does not include the Services or Third-Party Content.

UP42 Website” means the website at https://www.UP42.com (and any successor or related site designated by UP42), as may be updated by UP42 from time to time.

Losses” means any claims, damages, losses, liabilities, costs, and expenses in the meaning of Sections 249 ff. of the German Civil Code (Bürgerliches Gesetzbuch).

Modifications Effective Date” will have the meaning as set out in Section 2.2.

Platform Services” means the Services (including associated APIs), the UP42 Content (if any) and any other product or service provided by UP42under this Agreement. Platform Services do not include Third-Party Content

Policies” means the Privacy Policy, the Platform Terms, the Service Terms, all restrictions described in the UP42 Content and on the UP42 Website, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the UP42 Website.

Privacy Policy” means the privacy policy located at https://www.UP42.com (and any successor or related locations designated by UP42), as it may be updated by UP42 from time to time.

Service” means each of the services made available by UP42 or its affiliates, including those web services described in the Service Terms. Services do not include Third-Party Content.

Service Attributes” means service usage data related to Customer Account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.

Service Level Agreement” means all service level agreements that UP42 offer with respect to the Services and post on the Platform, as they may be updated by UP42 from time to time. The service level agreements UP42 offer with respect to the Services are located at https://www.UP42.com (and any successor or related locations designated by UP42), as may be updated by UP42 from time to time.

Service Terms” means the rights and restrictions for particular Services located at https://www.UP42.com (and any successor or related locations designated by UP42), as may be updated by UP42 from time to time.

Website Terms” means the terms of use located at https://www.UP42.com (and any successor or related locations designated by UP42), as may be updated by UP42 from time to time.

Suggestions” means all suggested improvements to the Platform Services that Customer provides to UP42.

Term” means the term of this Agreement described in Section 7.1.

Termination Date” means the effective date of termination provided in accordance with Section 7.1, in a notice from one Party to the other.

Third-Party Content” means Content made available to Customer by any third party on the UP42 Website or in conjunction with the Services, subject to a separate agreement and/or a separate license.

Last Update: April 23, 2019