Terms Of Service
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE ISITUP SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN PLEASE DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE ISITUP SERVICES. CLIENTS AND/OR USERS WHO VIOLATE THESE TERMS MAY HAVE THEIR ACCESS AND USE OF THE ISITUP SERVICES SUSPENDED OR TERMINATED, AT THE SUPPLIER’S DISCRETION.
b.“Account” means the central means for Access and use of the IsItUp Services subject to a designated fee;
d.“Authorisation” means the set of rights and privileges on the Web Site and System assigned to a User by a Client
e.“Content” means any data and information available through the IsItUp Services or contained within the structure of the System, including Client Data, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
f.“Client” means a natural or legal person who has concluded the Agreement with the Supplier;
g.“Client Data” means files and/or any other digital data and information which is subjected to the IsItUp Services or otherwise inserted to the System by the Client
h.“Fee” means a regular payment for using the activated Account
i.“Plan” means a set of a criteria for calculating the Fee
j.“Party” or “Parties” means the Supplier and/or Client, as applicable
k.“Special Terms” means any particulars, specifications and conditions by which the Parties have agreed to deviate from these Terms, including any terms and conditions relating to additional services offered by IsItUp
l.“Supplier” means IsItUp DotCom Sdn Bhd
m.”System” means the integrated cloud computing solution for providing the IsItUp Services, including applications, software, hardware, databases interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith
n.“User” means a natural person granted with the Authorization to use the Account on behalf of a Client
o.”Web Site” means this website, all related webpages, and all related websites operated by us, our immediate holding company, affiliates or divisions of IsItUp, but does not include any third party websites which are linked to or may link from this website whether or not such third party websites are used in connection with the IsItUp Services.
p.“IsItUp Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the IsItUp Services;
- General Conditions 1.Relationship of the Parties. Parties will act solely as independent contractors. The Agreement shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and the Supplier, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. The Agreement is not for the benefit of any third parties.
2.Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
3.Assignment.Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer the Agreement or delegate any of its rights and/or obligations under the Agreement without the Supplier’s written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. The Supplier, or its permitted successive assignees or transferees, may assign or transfer the Agreement or delegate any rights hereunder without consent: (1) to any entity controlled by, or under common control with the Supplier, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganisation, transfer, sale of assets or product lines, or change of control or ownership of the Supplier, or its permitted successive assignees or transferees.
4.No waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under the Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right.
5.Resolution of disputes. Subject to the terms and conditions set forth in Section B6 below, in the event of a dispute, controversy or claim arising out of or in relation to the Agreement, including but not limited to the formation, validity, breach or termination thereof, the Parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either Party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth in Section B clause 6 below. Notwithstanding the foregoing and subject to the terms and conditions set forth in Section B clause 6 below, either Party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. However, should an amicable settlement between Parties not be possible, the dispute shall be finally solved in court or by arbitration as designated herein subject to the terms and conditions set forth in Section B6 below.
6.Governing law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Malaysia and the Parties submit to the exclusive jurisdiction of the courts of Malaysia for the purposes of enforcing any claim arising hereunder.
Conclusion and term of the Agreement 1.A person may use the IsItUp Services only upon concluding an Agreement with the Supplier. The person, who wishes to create an Account, must: (a) be at least 18 years of age, if the person is a natural person, or have valid authorisation from his/her legal representative or custodian; (b) be duly incorporated and have full legal capacity, if the person is a legal person; or (c) if registering on behalf of a company, organization or separate legal entity that is not a natural person, be duly authorized by and shall bind the aforesaid person.
2.The Agreement is considered to be concluded as soon as whichever of the following occurs first: (a) the person has received the confirmation of the creation of the Account and necessary credentials from the Supplier in order to log in to his/her/its Account; (b) the person and the Supplier sign a contract containing Special Terms and a reference to these Terms; or (c) for those IsItUp Services and parts of the Web Site, the use of which is not dependent on creating an Account, upon the moment of gaining factual Access thereto and commencing use thereof.
3.The Supplier is not obliged to conclude an Agreement with any person and may refuse to do so at its sole discretion. Notwithstanding the foregoing, the Supplier has the right to decline the conclusion of an Agreement, if it has reason to believe that the person: (a) is a current or potential competitor of either Supplier; or (b) must be denied Access or use of the IsItUp Services according to applicable law.
Terms of the Agreement 1.The Supplier reserves the right, at their sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes from time to time on the Platform or otherwise making them available to you on or through the IsItUp Services. Please check these Terms periodically for changes. Your continued use of the IsItUp Services after such changes have been published on or through the Platform constitutes your binding acceptance of such changes. The resolution of any dispute that arises between you and the Supplier will be governed by the Terms in effect at the time such dispute arose. Each person interested in concluding an Agreement with the Supplier must carefully read these Terms and accept them. If a person does not agree to all of these Terms, the Supplier is unwilling to provide Access and IsItUp Services to that person and, as a result, that person must not order, receive, copy, execute, display, store or otherwise access or use all or any portion of the IsItUp Services and must stop such activities.
2.The acceptance to these Terms is granted as follows: (a) when the person has marked in the sign-up form on the Web Site that he/she/it agrees with these Terms and clicks “Sign up”, “Create account”, “Submit”, “Confirm” or other similar button, thus expressing his/her/its will to create an Account on the Web Site; (b) when the person concludes an Agreement with the Supplier; or (c) when the person continues to use the IsItUp Services after these Terms have been changed.
3.The Parties may always agree upon Special Terms, which form part of the Agreement. In case of conflicts between the Special Terms and these Terms, the Special Terms shall prevail.
4.Any new features, functions, enhancements and developments in the IsItUp Services, including the release of new tools and resources, shall be subject to these Terms.
- Account 1.Certain features, functions, parts or elements of the IsItUp Services can be used or accessed only by means of an Account. The person, who wishes to create an Account, must: (a) provide the data required by the Supplier by filling in the sign-up form on the Web Site; and (b) accept these Terms by clicking “Sign up”, “Create account”, “Submit”, “Confirm” or other similar button, thus expressing his/her/its will to create an Account on the Web Site.
2.Any person has the right to create an Account, except if the person: (a) does not have the right to conclude an Agreement with either Supplier; (b) is a current or potential competitor of the Supplier; or (c) must be denied Access or use of the IsItUp Services according to applicable law. The Supplier reserves the right to suspend or terminate an Account of such person mentioned in the foregoing.
3.Each Client may have only one Account. If several persons need to use Account on behalf of Client, then Client must designate such persons as Users. For the avoidance of doubt, each User designated by such Client shall be also bound to observe the terms set forth in such Client’s Agreement (including, without limitation, these Terms).
4.If Client has designated a certain number of Users to its Account and granted them Authorisation, it is presumed that such Users have the right of representation or other authorisation to act on behalf of Client when using the Account. The Supplier is not obliged to check or verify the right of representation or validity of Authorisation of any User, but the Supplier may ask for additional information or proof of the person’s right of representation and authorisation.
5.A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
6.The Client and any of the Users associated with the Account must provide the Supplier with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
7.The Supplier shall provide the Client with the following credentials in order to log in to its Account: (1) username and (2) password. These login credentials must not be used by multiple persons. If the Client has designated several Users to use its Account, each User is provided with separate credentials. The Client is responsible for keeping confidential all login credentials associated with the Account, so that they would not become known or available to any third persons for unauthorised uses.
8.The Client must promptly notify the Supplier: (a) of any disclosure, loss or unauthorised use of the login credentials; if (i) a User (for example, member of the management board, member of the supervisory board, sales manager, other employee) has left the Client’s organisation, (ii) a User’s role in the Client’s organisation has changed or (iii) if there are other reasons due to which a User does not have the right to use the Account on behalf of the Client, failing which the Supplier shall not be responsible for any misuse or unauthorized by such persons.
9.If the Client has requested to terminate the Agreement or otherwise close or delete the Account, then Supplier may at its discretion permanently delete the Account, including permanently delete all Client Data therein, as soon as reasonably practicable as of receipt of such request. The Supplier shall not be obliged to retain Client Data for any length of time pursuant to a termination, deletion or closure by the Client of the Account.
10.If the Client has a valid Account, he may purchase credits from the Supplier. Such credits are non-refundable, valid only for the purchase of data entry services and subject to a designated expiry date.
11.The Client will also be given the option to purchase Supplier-branded asset tags and relevant hardware. The Supplier sources such tags and hardware from third party suppliers. Postage and shipping costs will be borne by the Client.
- Plans 1.The use of Account is subject to a Fee. Upon sign-up for the Account, a suitable Plan must be selected in order to set the rate of the Fee. The rate of the Fee is different for each Plan.
2.The Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties.
3.Save as otherwise provided elsewhere in these Terms, all Fees are non-refundable, i.e. there are no refunds or credits available for periods where the Client did not use an activated Account, used it only partially, replaced the current Plan with a new Plan or deactivated the Account or terminated the Agreement during an ongoing payment interval.
4.All Fees are exclusive of all taxes, levies or duties applicable under any legal acts or imposed by tax authorities, unless stated otherwise in the Agreement. The Supplier shall be entitled to impose applicable taxes, levies or duties in addition to the Fees and the payment of such taxes, levies or duties is the responsibility of the Client. The Client shall not be entitled to withhold or deduct any amount from the Fee on the account of applicable withholding taxes in the Client’s country and be responsible for paying the full Fee.
5.Any Client has the right to upgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by the Supplier, and providing written notification to the Supplier of the Client’s intention to upgrade the Plan. In such an event and upon written acknowledgement from the Supplier of such request, the Supplier will issue an invoice to the Client, after which the Client’s credit card on file with the Supplier will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.
- Downgrading of the current Plan may be permitted on a case by case basis upon written notification by the Client to the Supplier and written acknowledgement from the Supplier of such a request. Downgrading of the current Plan may cause the loss of Content, features or capacity of the Account. We do not accept any liability for such loss.
7.Each new Client is entitled to a one-time temporary Access for the purposes of trying out the Web Site and IsItUp Services in accordance with any selected Plan without paying a Fee for a period of 30 days (“Free Trial”). If the Parties have not agreed otherwise, the default Plan for the Free Trial shall be the Plan with the lowest rate of Fee. The services provided under the Free Trial may be limited in comparison to a paid Account.
8.The Client is not required to provide any credit card information during the period of Free Trial. Once the period of Free Trial has expired, the Account will be automatically deactivated. The Supplier is not obliged to notify the Client of the expiry of the Free Trial period. In order to prevent deactivation or to reactivate the Account, the Client is required to select a suitable Plan and pay the first Fee. If the Client does not notify the Supplier of the selection of a Plan and pay the first Fee upon the expiry of the Free Trial, the Supplier has the right to permanently delete the Account, including all Client Data therein.
9.The Client must use its Account to keep it active. This means the Client must sign in at least once in a two-month period to keep the Account active, unless the Client has selected a Plan with a non-zero Fee. If the Client does not sign in during this time, the Supplier will assume the Account is inactive and may suspend or terminate the Account.
- Payment 1.The Supplier may seek pre-authorization of your credit card account prior to your purchase of IsItUp Services in order to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize such credit card account to pay any amounts described herein, and authorize the Supplier to charge all sums described in these Terms to such credit card account. You agree to provide the Supplier updated information regarding your credit card account upon the Supplier’s request and any time the information earlier provided is no longer valid. Non-payment of fees resulting from a failure to update your credit card information or a cancellation of the credit card may result in a suspension and potential termination of the Account.
2.Before the end of each payment interval, Client is issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
3.Non-payment of fees by the invoice due date will result in immediate suspension and potential termination of the Account.
- Client Data 1.If the Client adds Client Data to the Platform, such Client Data and any kind of processing of such Client Data must be in compliance with the Agreement, best practices at the Web Site and applicable law.
2.All rights, title and interest in and to the Client Data added by the Client shall remain with the Client or third persons (including Users, Persons and Organizations).
3.Client must assure that: (a) the Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates the rights of the Supplier, other Clients or Users or is harmful (for example viruses, worms and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful; (b) Client and all of the Users associated with the Account have the necessary rights and consent to use the Client Data, including to insert it into the Platform and process it by means of the Account; (c) The Supplier is allowed to further process the Client Data, acting as an authorised data processor of Client Data on behalf of Client for the purposes of performing the Agreement.
4.You retain all your ownership rights in your Client Data, whether posted and/or uploaded by you or made available on or through the IsItUp Services by the Supplier. The Supplier does not guarantee any accuracy or confidentiality with respect to any information contained in any Client Data, and strongly recommend that you think carefully about what you transmit, submit or post to or through the IsItUp Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that you, and not the Supplier, are entirely responsible for all Client Data that you upload, post, transmit, or otherwise make available through the IsItUp Services, as well as for any actions taken by the Suppliers or other Clients or Users as a result of such Client Data.
5.The Supplier does not make any representations that it will publish or make any Client Data available on or through the IsItUp Services, and reserves the right (but has no obligation), in its sole discretion, to refuse to allow any Client Data on the Platform, or to edit or remove any Client Data at any time with or without notice.
6.You understand that when using the Platform, you may be exposed to other Client’s Client Data from a variety of sources and that the Supplier does not endorse, nor is responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Client Data. You understand that the Supplier cannot, and does not, review all Client Data and do not endorse any Client Data. You further understand and acknowledge that you may be exposed to other Client’s Client Data that is inaccurate, misleading, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against the Supplier with respect thereto.
7.The Supplier is not obliged, in its own initiative, to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of the Supplier or if there is reason to believe that certain Client Data is unlawful, the Supplier has the right to: (a) notify the Client of such unlawful Client Data; (b) deny its publication on the Web Site or its insertion to the System; (c) demand that the Client brought the unlawful Client Data into compliance with the Agreement, best practices at the Web Site or applicable law; (d) temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.
8.If the Supplier is presented convincing evidence that the Client Data is not unlawful, the Supplier may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted.
9.Downgrading of the current Plan may cause the loss of Client Data.
- Restrictions 1.The IsItUp Services and any part or element thereof is allowed to be used only in the scope, with the means and for purposes, which their functionality has been created for and made available to the Client and Users. Any such use must be done in compliance with the Agreement, best practices at the Web Site and applicable law. For avoidance of doubt, this means that the Client nor any User must not: a.use the IsItUp Services or any part or element thereof for committing a crime, conducting some other breach of applicable law or for calling up for others to carry out such illegal actions;
b.copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the IsItUp Services or any part or element thereof nor otherwise attempt to extract the source code thereof;
c.use the IsItUp Services or any part or element thereof in the scope, which it does not agree to these Terms or other terms of the Agreement.
2.2. The Client or any User must obtain for the Supplier’s prior express consent at least in a format which can be reproduced in writing (e-mail, fax, Skype etc), if he/she/it wishes to: a.use the IsItUp Services or any part or element thereof in a scope, with means or for purposes other than those, which their functionality was created for;
b.use the IsItUp Services or any part or element thereof by means of programmes, which send them automatic enquiries or requests, unless such programme has been made available by the Supplier;
c.create interfaces between the IsItUp Services or any part or element thereof from one side and any third party systems from the other side, unless the Client creates such interface for its own systems.
- Intellectual Property Rights 1.The IsItUp Services, including without limitation, the Web Site, Services, System, Content (except Client Data) and any parts or elements thereof are owned and operated by the Supplier and their third party vendors and hosting partners. IsItUp Materials are protected by copyright, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Client Data or other content owned and/or posted by you, all IsItUp Materials are the copyrighted property of the Supplier, its immediate holding company, their affiliates and/or third party licensors. Furthermore, all trademarks, service marks, and trade names contained in the IsItUp Materials are proprietary to the Supplier, its immediate holding company, their affiliates and/or third-party licensors. Your use of the IsItUp Services does not grant to you ownership of any content, code, data or any part of the IsItUp Materials you may access on or through the Platform. The IsItUp Materials may include software available for you to download and the Supplier grants you a limited, non-exclusive license to use the software. You shall not republish, distribute, assign, sub-license, sell, prepare derivative works, decompile, reverse engineer, or otherwise attempt to discover the source code of the software. Any commercial or promotional distribution, publishing or exploitation of the IsItUp Materials is strictly prohibited unless you have received the express prior written permission from the Applicable Supplier or the otherwise applicable rights holder. The Supplier reserves all rights to the IsItUp Materials not expressly granted in the Terms.
2.All Content (except Client Data) is owned or controlled by the Supplier, its immediate holding company, their affiliates or their licensors, and is protected by copyright and other intellectual property laws. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the IsItUp Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the IsItUp Services or as otherwise permitted by applicable law.
3.You retain all your ownership rights in original aspects of your Client Data. By submitting your Client Data to the Supplier through the IsItUp Services, you hereby grant the Supplier, its immediate holding company and their affiliates, sublicensees, partners, designees, and assignees of the IsItUp Services a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your Client Data and derivatives thereof for any purpose whatsoever in connection with the IsItUp Services and the Supplier and its immediate holding company (and their successors’) business, including, without limitation, for providing you with the services you have chosen consistent with the intended features of the IsItUp Services and for marketing, promoting, and/or redistributing part or all of IsItUp Services (and derivative works thereof) in any media formats and through any websites, social media networks or media channels now known or hereafter discovered or developed.
4.You are solely responsible for your own Client Data and the consequences of posting or publishing them. In connection with Client Data, you affirm, represent, and warrant that: (i) you either own your Client Data or have the necessary licenses, rights, consents, and permissions to use and authorize the Supplier to display or otherwise use your Client Data under all patent, trademark, copyright, or other proprietary rights in and to your Client Data in a manner consistent with the intended features of the IsItUp Services and these Terms, and to grant the rights and license set forth in Section J3, and (ii) your Client Data, the Supplier or any IsItUp Licensee’s use of such Client Data pursuant to these Terms, and the Supplier or any IsItUp Licensee’s exercise of the license rights set forth in Section J3, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation; or (c) require obtaining a license from or paying any fees and/or royalties by the Supplier to any third party for the performance of any IsItUp Services you have chosen to be performed by the Supplier or for the exercise of any rights granted in these Terms, unless you and the Supplier otherwise agree.
5.If you provide the Supplier with any comments, bug reports, feedback, or modifications proposed or suggested by you for the IsItUp Services (herein “Feedback”), the Supplier shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the IsItUp Services. You hereby grant the Supplier a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
6.Any other feedback, comments, requests for technical support or other communications should be directed to the Supplier customer service channels.
- Third-Party Sites, Products and Services
The IsItUp Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. The Supplier does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, the Supplier makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
- Disclaimers; No Warranty 1.UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE ISITUP SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ISITUP SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY AND THEIR AFFILLIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
2.UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY AND THEIR AFFILIATES DO NOT WARRANT THAT THE ISITUP SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ISITUP SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ISITUP SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ISITUP SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
3.UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE ISITUP SERVICES, OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
You agree to indemnify and hold harmless the Supplier, its immediate holding company and their affiliates from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the IsItUp Services, representations made to the Supplier and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. The Supplier, its immediate holding company and their affiliates reserve the right, at their own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Supplier, its immediate holding company and their affiliates, and you agree to cooperate with such defense of these claims.
- Modifications of the Services 1.The Supplier reserves the right to modify the IsItUp Services or any part or element thereof from time to time without prior notice. For avoidance of doubt, the Supplier may: a.rebrand the IsItUp Services at its sole discretion;
b.stop providing or discontinue to develop any particular IsItUp Service or part or element of the Platform temporarily or permanently;
c.take such action as is necessary to preserve the good name of Supplier at its sole discretion upon any use of the IsItUp Services that may be reasonably interpreted as violation of the Supplier’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses and other destructive activities or illegal activity.
2.The Supplier reserves the right to modify certain parts or elements of the IsItUp Services from time to time by notifying the Client beforehand. The notification of the modifications is displayed on the Web Site when logging in to the Account. The prior notification period for modifying the Plans and the rates of Fees contained therein, shall be 30 days before the effective date of such modification.
3.If the Client does not accept the modification, then the Client shall notify the Supplier before the effective date of the modification, and the Agreement will terminate on the effective date of the modification pursuant to which any advance payments shall be forfeited. In the absence of the Client’s notice of non-acceptance, the Client’s continued use of the IsItUp Services, or any part or element thereof, after effective date of modifications (except for modifications of Plans and Fees) shall indicate its consent to the modifications.
4.The Supplier shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the IsItUp Services, or any part or element thereof.
- Termination of the Agreement 1.The Agreement may be terminated for convenience: (a) by the Client providing a written notice to the Supplier of the intention to terminate the Agreement one month prior the termination date and the Supplier providing a written acknowledgement of such request; (b) by the Client any time by not paying the Fee; (c) by the Supplier upon decision to end provision of the IsItUp Services and close the Platform; or (d) immediately by either Party, if proceedings are initiated for the other Party’s liquidation or insolvency or a negotiated settlement with the other Party’s creditors is concluded or an assignment is made on behalf of the other Party for the benefit of creditors.
2.The Agreement may be terminated for default immediately by the Supplier in case of breach of the Agreement by the Client.
3.Upon termination of the Agreement, the Applicable Supplier may at its own time (a) deactivate and permanently delete the Account, including all Client Data therein.
4.Upon termination of the Agreement, the Client must (a) stop using and prevent the further usage of the IsItUp Services, including, without limitation, the Platform; (b) pay any amounts owed to the Supplier under the Agreement; (c) discharge any liability incurred by the Client before under the Agreement prior to termination of the Agreement; and (d) continue discharging its duties under Sections J and M.
5.Upon termination of the Agreement, the Supplier has the right to delete the Account, including all Client Data therein.
- Supplier Remedies 1.Upon breach of the terms of the Agreement by a Client or User, the Supplier has the right to (a) set a term to the Client or User for ending or curing the breach and (b) temporarily: (i) restrict the Client’s or User’s rights of use of the IsItUp Services or any other part or element of the IsItUp Services; (ii) block the Account; (iii) restrict Access of the Client or User, including blocking any traffic from their IP address.
2.If the Client or User does not end or cure the breach within the term set by the Supplier, the breach is considered to be a material breach.
3.Upon material breach of the terms of the Agreement by a Client or User, the Supplier has the right to permanently: (a) deny Access to the Client or User from any source, by any means of for any purposes, including from a specific IP-address; (b) delete the Account, including all Client Data therein; (c) terminate the Agreement promptly.
4.The Supplier is entitled to use the same or similar remedies against any other persons who use the IsItUp Services in breach with these Terms.
5.Notwithstanding the foregoing, the Supplier may also apply any other remedies available to it under the applicable law.
6.Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the IsItUp Services.
7.If the Supplier has reasonable grounds to believe that the Client’s or User’s use of the IsItUp Services, including the Account may harm any third persons, the Supplier has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
- Limitation of Liability 1.The Supplier shall not be liable to the Client or User for any consequences resulting from: (a) any modifications in these Terms, Plans and rates of Fees, the IsItUp Services or any part or element thereof (including but not limited to Account), including any permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the IsItUp Services; (b) error in data entry, deletion of, corruption of, or failure to store any Client Data; (c) use of Client Data by the Client or any of the Users associated with the Account; (d) upgrading or downgrading the current Plan; (e) any disclosure, loss or unauthorised use of the login credentials due to Client’s failure to keep them confidential; (f) the Client’s use of the Account or the IsItUp Services by means of browsers other than those accepted or supported by the Supplier; (g)the application of any remedies against the Client or User by the Supplier, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the IsItUp Services or any part or element thereof; (h) the differences between technologies and platforms used for Access, for example if certain features, functions, parts or elements of the IsItUp Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet, or vice versa; (i) the Supplier’s application of the remedies described in Section P, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards; (j) the use or download of any of the IsItUp Materials including software.
2.Supplier shall not be liable to the Client for any claim by any User or third persons against the Client arising out of the Client’s failure to: (a) provide the Supplier with accurate information about the Client, Users or Account; (b) notify the Supplier of any reasons due to which a User does not have the right to use the Account on behalf of the Client; (c) assure the lawfulness of the Client Data; (d) assure the necessary rights to use the Client Data; or (e) abide by any of the restrictions described in Section I.
3.UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY OR THEIR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE ISITUP SERVICES, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE ISITUP SERVICES OR ANY LINKED SITES, THE ISITUP MATERIALS, OR ANY OTHER INTERACTIONS WITH THE SUPPLIER, EVEN IF THE SUPPLIER OR AN AUTHORIZED REPRESENTATIVE OF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE SUPPLIER’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
4.The Supplier’s liability in contract, tort, negligence, product liability or otherwise however arising out of or in connection with the performance of their obligations under the Agreement for all events or series of connected events occurring in any year of the term of the Agreement, shall not exceed in the aggregate 100% of the Fees paid by the Client for the use of Account pursuant to the Agreement during 6 months prior to the event giving rise to liability.
5.NO Party shall be liable to ANY other for any failure or delay in the performance of its obligations hereunder as a result of any cause beyond its reasonable control, including but not limited to default or failure of a third party (including telecommunications operators, suppliers, installers or maintainers), war, riot, civil common strike, lockout or other industrial action, act of God, storm, fire, earthquake, explosion, flood, electrical failure, confiscation and action or threat of action of any government or government agency provided that it endeavours to minimize the effect of the force majeure event on its performance of its obligations. If such delay or failure continues for more than ninety (90) days, the non-affected Party(ies) shall be entitled to terminate the Agreement forthwith by notice in writing to the other party provided that all sums due by the Client for any Services supplied prior to the date of termination shall remain payable in accordance with the Agreement.
6.THESE LIMITATIONS OF LIABILITY AND DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN THE SUPPLIERS AND RECEIVED THROUGH THE PLATFORM OR RECEIVED THROUGH ANY LINKED SITES.
7.YOU ACKNOWLEDGE AND AGREE THAT THE SUPPLIER HAS OFFERED THE ISITUP SERVICES, SET THE PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE SUPPLIERS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE SUPPLIERS. THE SUPPLIERS WOULD NOT BE ABLE TO PROVIDE THE ISITUP SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.