Terms of Service 
THIS AGREEMENT GOVERNS THE USE OF THE PLATFORM BY YOU, YOUR EMPLOYEES OR ANY OTHER INDIVIDUAL DESIGNATED BY YOU TO USE THE PLATFORM ON YOUR BEHALF. BY SIGNING THIS AGREEMENT OR ACCEPTING THIS AGREEMENT (OR ANY APPLICABLE ORDER FORM) OR USING THE PLATFORM YOU SIGNIFY YOUR CONSENT TO BE BOUND BY THE AGREEMENT AND THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT. IF YOU DO NOT AGREE TO THE AGREEMENT YOU MUST NOT USE THE PLATFORM. ONCE ACCEPTED, THE AGREEMENT SHALL CONSTITUTE A BINDING CONTRACT BETWEEN UPSOLVER AND YOU. EACH OF UPSOLVER AND YOU MAY BE REFERRED HEREIN AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.  
THE AGREEMENT  
1. Definitions 
1.1. “Upsolver” (also referred to as “we”, “us”, or “our”) – means the Upsolver entity which executed or accepted the order form (or any other purchase order which for all purposes shall also be considered as an order form), or if no order form was executed, Upsolver Inc. 
1.2. "Customer" (also referred to as “you”, or “yourself”) – means legal entity or individual accepting the Agreement. 
1.3. "Agreement" – means these terms of services, as well as any order forms which have been executed between the Parties or was accepted by Upsolver. 
1.4. "Platform" – means Upsolver's Data Lake Platform.  
1.5. “Term” – as set forth under section 6.  
1.6. "Authorized Users" – means employees or service providers who are authorized by the Customer to access and use the Platform on your behalf. 
1.7. "Customer Data" – means content or partial content of files fed through Upsolver's Platform by the Customer and any additional data created by the Platform (enrichments, aggregations etc.) based on such content. 
1.8. "Provisioning Data" – means any data generated by Upsolver's platform as long as it doesn't include Customer Data (for instance, error logs, usage statistics, billing information, objects created in Upsolver's platform etc.). 
1.9. "Deployment" – means the deployment of Upsolver's Platform on servers according to the Customer's preference. Servers can reside in Upsolver's cloud account, Customer's cloud account or Customer's data center.  
1.10. "Upsolver Unit" – means a unit of processing capability per hour, billed on per minute usage. Upsolver fees will be calculated according to consumption of Upsolver Units. Upsolver supports several instance types so one instance hour may cost more than one Upsolver Unit. 
1.11. "Upsolver Unit Price" – Unit price will vary according to the term and size of purchase from Upsolver. 
1.12. "Fees" – means the applicable fees due for use of the Platform which shall be calculated according to the consumption of Upsolver Units, in accordance with the applicable Payment Method. 
1.13. "Payment Method" – means either one or a combination of the following:

 "On-Demand Price" - no commitment, pay-as-you go model. Upsolver will bill Customer in the end of a calendar month according to its actual consumption; 
 "Reserved price" - in exchange for a discount, Customer commits to buying a pool of Upsolver Units, valid for a specific term (for example - 20,000 Units, valid for a period of 12 months). During the agreed upon consumption term, every Upsolver Unit consumed by Customer will be deducted from the pool. Customer can't cancel the pool order or get a refund for Upsolver Units already purchased. Upsolver Units may not be used after the order form’s term has ended. 
2. General  
2.1. Each of the Parties hereby warrants and represents to the other Party that: (i) it has full power and authority to enter into and perform its obligations under this Agreement; (ii) the execution, delivery and performance of this Agreement was duly authorized; and (iii) If it is a corporation, it's in good standing under the laws of the place of its incorporation.  
2.2. Subject to your compliance with the terms of this Agreement including payment of the Fees (to the extent applicable), we grant you a limited, non exclusive, revocable, non-transferable, and non-sub licensable right, to use the Platform during the term of the Agreement. The use of the Platform shall be (i) strictly by your Authorized Users; (ii) solely for your personal use or your internal business purposes; and (iii) in accordance with the other requirements of this Agreement and the Platform's documentation available on Upsolver’s website (as may be updated from time to time) and with Upsolver's instructions.  
2.3. Notwithstanding the above, if you use the Platform for trial purposes, you are entitled to use the Platform for evaluation purposes and during a limited period only, unless you become a paying Customer). We reserve the right to modify, limit the functionalities and/or discontinue the provision of the trial version at any given time, without providing a prior notice to that effect. Please note that upon the end of your trial period, and unless you became a paying Customer, prior to such time, you may lose access to Upsolver’s Platform.As you do not make any payments for using the trial versions, we shall not have any liability for the use of the Platform or provide any warranty regarding the Platform. Your sole remedy for any claim related to such use, will be to cease use of the Platform. 
2.4. During the Term and if separately agreed to between you and Upsolver, Upsolver directly or through third parties, shall provide you those professional services separately agreed to under the Order Form.  
3. Fees and Expenses 
3.1. In consideration for the Service provided, Customer shall pay Azure the fees set forth in the Order or on the Marketplace (the “Subscription Fee”) (plus any applicable taxes). Azure shall be responsible for paying the Subscription Fees to Upsolver, subject to Azure's agreement with Upsolver. For clarity, notwithstanding any payment by Customer to Azure, Upsolver shall not be required to make available the Service to Customer unless Upsolver has received the Subscription Fee in accordance with the Order or the Marketplace.

In no event, will Upsolver provide, or be liable for, any refund of the fees Customer pays for access to or use of any other services provided by Azure to Customer. If the Subscription Fee is not paid to Upsolver, it shall be deemed a breach of these Terms entitling Upsolver to suspend or terminate the provision of the Service 
3.2. If Customer deploys Upsolver’s products to its own cloud account or data center, Customer will bare all infrastructure and/or provider costs related to its cloud account or data center. 
4. Customer's Data  
4.1. Regardless of the Deployment method, Customer Data storage shall be maintained in the Customer's cloud account or in the Customer's data center (as applicable). Servers running Upsolver's Platform shall only store Customer Data in their Random Accesses Memory (RAM) (but not locally on hard drives) and therefore be deleted upon the applicable servers shut down. Upsolver may however store your contact and billing information on its own cloud account. Upsolver is entitled to transfer Provisioning Data in accordance with the provisions of Section 13.2, and between Upsolver's different group entities as required to enable the use of the Platform. 
4.2. Upsolver's use of the Customer Data shall be solely for the purpose of providing its services through the Platform and subject to confidentiality undertaking, as set forth under section 11 below. If Customer will choose to provide Upsolver with access to Customer Data, Upsolver shall implement appropriate technical and organizational measures to ensure an adequate level of security of the Customer Data, and shall ensure access to Customer Data will be limited to Upsolver's personnel on a need to know basis.  
4.3. Customer hereby warrants and represents that (i) it has implemented appropriate technical and organizational measures to ensure a level of security of the infrastructure used to store the Customer Data fed to the Platform; (ii) it has all requisite rights and authority to provide the Customer Data and any other information or data provided to Upsolver in connection with the use of the Platform; (iii) it has obtained all permissions and consents (including consent of data subjects and Authorized Users), as may be necessary under applicable law (including privacy laws), any contract and industry standards, in order to allow Upsolver to lawfully access and process the aforementioned items in the manners and for the purposes contemplated by this Agreement. 
5. Restrictions 
5.1. Except as expressly provided herein, you may not use, or have others use, or provide to third parties, access to use the Platform or any part thereof. you may not use the Platform for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law. You may not disassemble, de-compile, reverse engineer or create derivative works from the Platform or any part thereof. You may not use the Platform in order to develop, or create, or permit others to develop or create, a similar or competitive product or service. You may not lease, lend, sell, market, license, sublicense, distribute, transfer any of your rights to use the Platform or otherwise grant to any person or entity any right to use the Platform except to the extent expressly permitted hereunder.

You may not and may not attempt to breach the security of the Platform or identify any security vulnerabilities thereof, or to interfere with, circumvent, manipulate, impair or disrupt the operation, or the functionality of the Platform. 
5.2. You shall ensure that all your Authorized Users comply with the terms of this Agreement and you shall be liable for any breach thereof by any of your Authorized Users. You will notify us immediately upon becoming aware of any, actual or suspected, unauthorized use of the Platform by your Authorized Users.  
5.3. We reserve the right to immediately block and/or discontinue, without liability, the access to the Platform to any Customer that is in breach of the provisions of this section 5.  
6. Term and Termination 
6.1. Except with respect to the trial version which shall be for a limited term, this Agreement commences upon your acceptance and shall continue to be in full force and effect until terminated by Upsolver with immediate effect pursuant to a material breach by you; and in all cases subject to the other provisions of this Agreement concerning termination. 
6.2. Upon termination of this Agreement:  
6.2.1. We may, in our discretion, terminate the Customer’s and its Authorized Users’ access to the Platform;  
6.2.2. Customer will pay all then-outstanding Fees through the Azure marketplace  
6.2.3. Customer must cease any and all use of the Platform and cause all other Authorized Users of the Customer to cease any and all use of the Platform. 
6.2.4. For the avoidance of doubt, it shall be clarified that Customer shall have no rights to receive any further services through the Platform or otherwise under this Agreement. 
6.3. Sections 3,4,5,6,8,9,10,11,12 and 13 herein will survive any termination of this Agreement. 
7. Support and Maintenance 
7.1. Upsolver will respond to questions, problems and inquiries deemed by Upsolver to be of a critical nature, whenever submitted, within one hour of approach.  
7.2. During the Term, we will endeavor to provide you with fixes for Platform malfunctions that you or other customers, have found or reported, considering, among others, our ability to reproduce the malfunction in question, the severity of the malfunction, and the magnitude of its effect.  
7.3. We may modify, adapt, improve, or enhance the Platform, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide you with notice thereof. 
7.4. You agree to cooperate, and work closely with us, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.  
8. Intellectual Property

8.1. As between the Parties, all rights, title and interest, including copyrights, trademarks, trade names, trade secrets and any other intellectual property rights, as well as any goodwill associated therewith, in and to the (i) Platform or any part thereof, including without limitation computer code, graphic design, layout and the user interfaces of the Platform (and also including without limitation in any other information derived from the Platform which is not the Customer Data, such as without limitation, Provisioning Data), and (ii) all derivatives, improvements, updates, enhancements and variations of the foregoing, are and will remain at all times, owned by, or licensed to, Upsolver. Other than the limited use rights expressly granted by this Agreement, this Agreement does not grant, sell, transfer, or assign to you or to any Authorized User, a right, title or interest in or to patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses, or content with respect to, or in connection with, the Platform.  
8.2. You are not required to provide any feedback or commentary with respect to the Platform or otherwise to Upsolver, but to the extent you do, Upsolver shall be considered to have been granted a free of charge, irrevocable, worldwide, perpetual license to use such feedback and commentary for any purpose whatsoever (including without limitation for the improvement of the Platform or for any other commercial purpose, and including also rights to transfer, and sub-license same), without any requirement to compensate Customer. 
8.3. Notwithstanding the foregoing and for the avoidance of any doubt, you will retain any and all rights, title and interest, including copyrights, trademarks, trade names, trade secrets and any other intellectual property rights you may have, and any goodwill associated therewith, in and to your Customer Data.  
9. Disclaimer of Warranty and Limitation of Liability 
9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON OUR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT OR THE PLATFORM. THE TOTAL AND AGGREGATE LIABILITY OF EITHER PARTY AND ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, FOR DIRECT DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR THE PLATFORM SHALL BE LIMITED TO THE FEES PAYABLE TO UPSOLVER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE FIRST CLAIM MADE HEREUNDER. NOTWITHSTANDING THE ABOVE, THE LIMITATIONS OF THIS ENTIRE SECTION SHALL NOT APPLY IN THE EVENT OF INTENTIONAL MISCONDUCT, AND/OR WITH RESEPCT TO THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND/OR YOUR PAYMENT OBLIGATIONS FOR THE APPLICABLE FEES HEREUNDER, AND/OR BREACH OF SECTIONS 8 (INTELLECTUAL PROPERTY), AND/OR 5 (RESTRICTIONS) BY YOU.

9.2. ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE PLATFORM, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY (I) ABOUT THE ACCURACY OR COMPLETENESS OF THE EXPECTED BUSINESS RESULTS, OUTCOME OR OPERATIONAL BENEFITS FROM UTILIZING THE PLATFORM AND UPSOLVER HAS NO RESPONSIBILITY OR LIABILITY, REGARDING THE CUSTOMER’S RELIANCE UPON, OR USE OF, THE PLATFORM, THE CUSTOMER’S ACTIONS OR OMISSIONS IN CONNECTION WITH THE PLATFORM, OR ANY CONSEQUENCES RESULTING THEREFROM; (II) THAT THE PLATFORM WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER; AND (III) THAT IT WILL ALWAYS BE AVAILABLE, FREE FROM ERRORS, OMISSIONS OR MALFUNCTIONS. 
9.3. THE SERVICES OR FACILITIES OF CERTAIN THIRD PARTIES NOT ACTING ON BEHALF OF UPSOVLER, INCLUDING WITHOUT LIMITATION HOSTING SERVICES OR MAREKT PLACE PLATFORM PROVIDERS, MAY BE REQUIRED TO BE RECEIVED IN ORDER TO RECEIVE USE OF THE PLATFORM. YOU ACKNOWLEDGE THAT (A) SUCH THIRD PARTY PROVIDERS ARE NOT PART OF UPSOLVER’S ORGANIZATION, ARE NOT ACTING ON UPSOLVER’S BEHALF, AND UPSOLVER CANNOT ASSURE THEIR COMPLIANCE WITH THESE TERMS OR ANY OTHER REQUIREMENTS; AND (B) UPSOLVER WILL HAVE NO LIABILITY WHATSOEVER WITH RESEPCT TO THE ACTS OR OMMISIONS OF SUCH THIRD-PARTY PROVIDERS (INCLUDING WITHOUT LIMITATION THEIR FAILURE TO COMPLY WITH ANY TERMS OR REQUIREMETNS FOR USE OF THE SERVICES).  
9.4. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT THE PLATFORM IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, WORKMANSHIP, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY OR PERFORMANCE. 
10. Indemnity.  
10.1. By Customer - You agree to indemnify and hold harmless Upsolver and its directors, officers, employees, and subcontractors, upon our request and at your own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third-party complaint, claim, plea, or demand in connection with your breach of any representation herein.  
10.2. By Upsolver - Upsolver agrees to indemnify and hold you and your directors, officers, employees, and subcontractors harmless, at Upsolver’s own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from a third party claim that the Platform, when used within the scope of this Agreement, infringes any intellectual property rights of a third-party. The foregoing indemnity obligation of Upsolver does not apply to claims to the extent arising from, if and as relevant: (i) the combination of the Platform with other products not supplied by or on behalf of Upsolver where such claim would not have arisen from the use of the Platform standing alone, (ii) compliance by Upsolver with your specifications, where such claim would not have arisen from the use of the Platform without compliance with your specifications, (iii) any modification of the Platform not made by or on behalf of Upsolver, where such claim would not

have arisen but for such modification, or (iv) where you continue an activity where such claim would not have arisen but for such activity after having received and had a commercially reasonable time to install modifications from Upsolver that would have completely avoided the activity. 
10.3. General – As a condition to the Parties’ respective indemnification obligations hereunder, the indemnified Party shall promptly notify the indemnifying Party of any claim subject to indemnification; provided that the indemnified Party's failure to do so shall not affect the indemnifying Party’s obligations hereunder, except to the extent that the indemnified Party's failure to promptly notify the indemnifying Party materially delays or prejudices the indemnifying party’s ability to defend the claim. The indemnifying Party will have the right to solely defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying Party deems appropriate, provided the indemnifying Party shall not enter into any settlement without the indemnified Party's prior written consent.  
11. Confidentiality.  
Both Parties acknowledge that the terms of this Agreement and any other information that a Party hereunder (the “Recipient”) may be exposed to during the performance of this Agreement, constitute the confidential information (“Confidential Information”) of the other Party (the “Disclosing Party”). The Recipient acknowledges that Confidential Information constitutes valuable proprietary information of the Disclosing Party, and that unauthorized disclosure, transfer, or use of, or unauthorized provision of access to, such information is prohibited and could cause irreparable harm to the Disclosing Party. The Recipient may not disclose the Confidential Information and must hold such information in confidence using the same degree of care that it uses to prevent the unauthorized dissemination or publication of Recipient’s own confidential information but in no case less than a reasonable degree of care.  
The Recipient will not disclose the Disclosing Party’s Confidential Information, except to its respective officers, directors, employees, agents, consultants and subcontractors, on a strict 'need to know' basis, provided they are bound by sufficient confidentiality obligations. The confidentiality and non-use obligations hereunder shall not apply to any information the Recipient can demonstrate: (i) is or becomes generally available to the public, through no breach by the Recipient of this Agreement; (ii) was lawfully in Recipient’s possession or known by Recipient prior to receipt from the other Party, as evidenced by written records; (iii) was rightfully disclosed to the Recipient without restriction by a third Party who is not bound by any confidentiality obligations with respect thereto; (iv) was developed by the Recipient without use of or reference to the Disclosing Party's confidential information; or (v) is required to be disclosed by law, provided that, if legally permitted to do so, the Recipient will give prompt prior notice of such requirement to the Disclosing Party, in order to allow the Disclosing Party to intervene and protect its interests in such information.  
12. Governing Law and Venue. 

If the Upsolver entity with which you are engaging is Upsolver Ltd. - This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to its conflict of law principles. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or our services hereunder, shall be submitted to the sole and exclusive jurisdiction of the competent courts in the Tel Aviv district in Israel. 
If the Upsolver entity with which you are engaging is Upsolver Inc. - This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of law principles. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or our services hereunder, shall be submitted to the sole and exclusive jurisdiction of the competent New York State Courts located in New York County and the U.S. District Court for the Southern District of New York.  
12.1. Subject to the aforesaid, you and Upsolver, each hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens.  
12.2. Notwithstanding the foregoing (i) either Party may lodge a claim against the other Party pursuant to the indemnity clause above, in any court adjudicating a third-party claim against us; and (ii) either Party may also seek interim or emergency relief in the competent courts located in the jurisdiction in which the other Party in incorporated. 
13. General Terms. 
13.1. Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, internet or cloud resources failure, infrastructure, hardware and software failure, network or computer equipment failures, telecommunication equipment failure, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or loss of or fluctuations in heat, light or air conditioning. 
13.2. Assignment. You may not assign the Agreement without our prior written consent, which we shall not unreasonably withhold. Any purported assignment without our prior written consent is void. Each Party may assign this Agreement in its entirety, including all rights, duties, liabilities, performances, gathered Customer's Data and obligations herein upon a merger, acquisition, change of control or the sale of all or substantially all of its equity or assets. By virtue of such assignment, the assignee assumes in the assigning Party’s stead, including all rights, duties, liabilities, performances and obligations hereunder, and the assigning Party is released therefrom. 
13.3. Relationship of the parties. The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint venture or employee of the other. 
13.4. Reference. Upsolver may use Customer’s name, logo and other marks on its website and in its marketing materials in order to reference Customer as a customer of Upsolver. With the Customer’s consent, Upsolver may further

publish high level details of Customer’s implementation of the Platform and refer potential customers and investors as a reference customer, provided that no such connection to Customer will be made without its prior consent. 
13.5. Complete Terms and Severability. This Agreement constitute the entire and complete agreement between you and us concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both Parties. In the event of a conflict between these terms of service and an order form executed by both Parties, these terms of service shall prevail, unless such Order Form explicitly specifies the contemplated issue in these terms of services is to be modified by such Order Form. 
13.6. No waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of this Agreement. The waiver, by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach. 
* * * * *