1. GRANT OF LIMITED LICENSE. Subject to the terms and restriction of these Terms, Upstream grants you the right to, (a) remotely access (i.e. on a SaaS basis) the Platform; and (b) install and use our on-prem software (“Local Software”), solely for the purpose of internal evaluation in a non-production environment (“Evaluation“).Unless otherwise indicated, the term “Software Product”shall mean the Program, the Local Software, features and tools provided via the Program and any documentation (“Documentation”) provided to you. Unauthorized use of the Software Product or otherwise failing to comply with these Terms will result in an automatic immediate termination of these Terms, without limiting any other remedies which may be available to Upstream.
2. RESTRICTED USE. Unless otherwise explicitly specified and permitted under these Terms, you may not, directly or indirectly (i) copy, distribute, modify, transfer, sell, sublicense, reverse engineer, decompile, disassemble revise or enhance the Software Product or attempt to discover the Software Product’s source code the Software Product; (ii) use the Software Product for any commercial purpose; (iii) place the Software Product onto a server so that it is accessible via a public network; (iv) develop any concept, material or product containing any of the concepts and ideas contained in the Software Product; (v) work around any technical limitations in the Software Product, and/or (vi) publish or make available in any manner, other than to Upstream, any reviews, opinions or impressions about, or experiences with, the Software Product, or any features of the Software Product, including, by way of illustration and not limitation, by publicizing them in blogs or posting screenshots on the internet.
3. TITLE AND OWNERSHIP. The Software Product is a valuable trade secret of Upstream and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Upstream. The Software Product and/or any copies thereof, including without limitation any derivative works made (regardless of whether such derivative works were made and/or developed pursuant to the request and/or your specifications, and irrespective of any support and/or assistance Upstream may, will or had received from you, or any third party on its behalf, with respect thereto), as well as any enhancements, improvements, corrections, modifications, alterations, revisions, extensions and updates thereto, shall remain Upstream’s sole and exclusive property. All right, title and interest (including all intellectual property rights) evidenced by or embodied in and/or attached/connected/related to the Software Product and any derivatives thereof and modifications thereto, are and shall be owned solely and exclusively by Upstream. To dispel any doubt, the results of the Evaluation shall be considered Upstream’s Confidential Information. Upstream reserves all rights not expressly granted herein to the Software Product.
If you contact Upstream with feedback data (whether orally or in writing) (e.g., questions, comments, feedback data, reports, suggestions or the like) regarding the Software Product (“Feedback”), such Feedback shall be deemed the exclusive property of Upstream; and you hereby irrevocably transfers and assigns to Upstream all intellectual property rights to the Feedback and Upstream IP and waives any and all moral rights or economic rights that you may have in respect thereto.
4. CUSTOMER DATA AND ANALYTICS INFORMATION. You hereby acknowledge that in the course of performing the Evaluation, Upstream may monitor and process data regarding the vehicles included in your vehicles fleet’s systems and network (the “Customer Data”). As the exclusive owner of the Customer Data, you represent that to the extent the Customer Data includes any personally identifiable information, you received the required consents or permits and have acted in compliance with applicable privacy laws, as to allow us to use the Customer Data solely in order to perform Upstream’s services and not for any monetization purposes. Upstream may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, hold and/or manage the Customer Data through Upstream’s authorized third party service providers as reasonable for business purposes, which may be located in a country that does not have the same data protection laws as the data subject’s jurisdiction.
Notwithstanding the foregoing, any anonymous information, which is derived from the use of the Software Product (i.e., metadata, aggregated and/or analytics information which is not personally identifiable information (“Analytics Information”) may be used by Upstream for any purpose, including for providing its services, for development, and/or for statistical purposes, and Upstream will be the exclusive owners of the Analytics Information.
5. THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE. You acknowledge and agrees that any third party software that may be provided with the Software Product is provided under the terms of the license attached/linked thereto or, if no such license is attached, such third party software is provided “AS IS”. Upstream is not liable for any losses or damages which may occur resulting from the use of any third party software.
Portions of the Software Product include third party open source software that is subject to third party terms and conditions (“Open Source Software”). A list of such Open Source Software is detailed at the following URL: https://upstream.auto/open-source-software-terms/as may be further updated by Upstream from time to time (the “Open Source List”). If there is a conflict between any Open Source Software and these Terms, then the Open Source Software shall prevail but solely in connection with the related Open Source Software. For clarity, it is clarified that any Open Source Software is provided on an “AS IS” basis, without warranty of any kind, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and that in no event shall Upstream or the author(s) of the Open Source Software be liable for any direct, indirect, incidental, special, exemplary, or consequential damages, however caused and on any theory of liability, arising in any way out of the use of the Open Source Software.
6. NO WARRANTY AND LIMITATION OF LIABILITY. The software product, any security audit reports specifying any errors, anomalies or security alerts in the vehicles networks or other reports and output (the “reports”) and services provided by upstream in the course of the evaluation (including any service that is based on or presents data received from third party sources) are provided on an “as is”and “as available” basisfor internal evaluation purposes only and hereby disclaims all warranties, either express or implied, including but not limited to implied warranties of merchantability fitness for a particular purpose, title and non infringement, with respect to the software product, the reports and services provided by upstream in the course of the evaluation.
To the maximum extent permitted by applicable law, in no event shall upstream its officers, directors and/or employees, be liable for any direct, indirect, special, incidental, or consequential damages, any lost profits or goodwill, lost or damaged data or documentation, lost savings or other incidental or consequential damages, or any claim by any other party, however caused, based on any theory of liability and whether or not upstream or any related party has been advised of the possibility of such damages, arising in any way out of these terms including the reports, the services provided by upstream, the software product, or tour use of the software product.
7. CONFIDENTIALITY. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). For clarity, the Software Product and the results of the Evaluation (including any information related thereto) shall be considered Upstream Confidential Information.
Notwithstanding the foregoing, Confidential Information shall not include any information which is demonstrated by a Party to have been: (i) in the public domain or easily available to the public, through no wrongful act of such Party, either prior to or after the time of disclosure by the other Party; (ii) generally made available by a Party not under obligations of confidentiality; and (iii) already in a Party’s possession at the time of disclosure.
Each Party agrees to use the other Party’s Confidential Information solely for the Evaluation and not to disclose the Confidential Information, except to those of its employees who have a need to know the Confidential Information in order to perform the Evaluation and such Party’s obligations under these Terms, provided such employees shall be under a written contractual restriction in connection with the Confidential Information that is no less restrictive and protective than the terms of this Section and provided further that such Party is liable hereunder for any acts or omissions of its employees with respect to the disclosure or use of the Confidential Information.Each Party agrees that it shall hold all Confidential Information in confidence and shall safeguard the Confidential Information with at least the same degree of care that it takes to protect its most valuable confidential and proprietary information.
8. TERM AND TERMINATION. These Terms are effective until the earlier of (i) you and Upstream entering into a license agreement; or (ii) its termination by Upstream or you. Upstream, in its sole discretion, has the right to terminate these Terms and/or your access to the Software Product, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of these Terms). Upon termination, you shall: (i) immediately cease any use and access to the Software Product; (ii) returnto Upstream or erase the Local Software, as well as it any related documentation to Upstream; and (iii) return to Upstream any and all of Upstream Confidential Information then in its possession. The following provisions shall survive the expiration or termination of this Agreement: 3(Title and Ownership), 5 (Customer Data and Analytics Information), 5(Third Party Software and Open Source Software), 6(No Warranty and Limitation of Liability), 7(Confidentiality), 8(Term and Termination) and 9(General).
9. GENERAL. These Terms will be governed by the laws of State of Israel, without giving effect to the principles of conflict of laws; and any claim under These Terms shall be brought exclusively to the competent courts in state courts in Tel Aviv, Israel. You shall not assign these Terms without the prior written consent of Upstream. Any prohibited assignment shall be null and void.
No waiver of rights arising under these Terms shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No failure or delay by either Party in exercising any right, power or remedy under these Terms shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such Party.
These Terms may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall together be deemed to constitute one and the same agreement.