IMPORTANT – PLEASE READ THIS AGREEMENT BEFORE USING THE SOFTWARE. BY DOWNLOADING OR USING OUR SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
This End User License Agreement (the “EULA”) is entered into between up2parts GmbH, (Register No. HRB 5103, local court Weiden i. d. OPf.) with its registered office at Dr. Müller Straße 26, 92637 Weiden i. d. OPf., Germany (the “Licensor”) and you (the “Licensee”). Licensor and Licensee are hereinafter jointly referred to as “Parties” and individually as “Party“. The EULA is part of the license agreement concluded between the Licensor and the Licensee for the transfer of the Software (as defined below).
By subscribing to a license or using the Software, you agree to the following terms and conditions. You may not use the Software or its functions if you do not accept and comply with these conditions.
1. DEFINITIONS AND SCOPE
In this EULA:
1.1. the following words and phrases have the following meanings, unless the context requires otherwise:
- “Subscription”
is a contract for the use of the following software products in the following contractual forms:
UP2PARTS COCKPIT: Subscription
UP2PARTS CALCULATION: Subscription
UP2PARTS AUTOCAM: Subscription - “User”
any person who accesses or uses the Software or Documentation, including persons described or referred to as “Users” and “Designated End Users”.
- “Defect”
a material error, defect or deficiency affecting an element or part of the Software and/or Services which causes that element or part to fail to substantially comply with the relevant specification and which arises as a result of Licensor’s default - “Documentation”
those user manuals, online help and guides for the Software on any media that relate to the use and operation of the Software, including the specification, as provided by Licensor or made available to Licensee for use of the Software - “End date”
the date on which this EULA expires or is terminated for any other reason - “Fees”
the license fee(s) for the use of the Software - “Sanction”
any economic, financial, trade or other sanctions, embargoes, bans on imports or exports, prohibitions on the transfer of funds or assets or the provision of services or equivalent measures imposed by a competent authority or by the laws of any state or union of states - “Software”
the Software based on UP2PARTS CLOUD, as specified in the Documentation, as well as all Software updates provided to the Licensee by the Licensor from time to time under this EULA. - “Software update” or “Update”
any updates and upgrades and revisions, new editions and new versions of the Software and any patches or bug fixes issued by the Licensor in respect of the Software - “Start date”
the date on which the Software is made available to the Licensee - “UrhG”
German Copyright and Related Rights Act (Urheberrechtsgesetz – UrhG) - “Losses”
all losses and damages including all direct and indirect losses and consequential losses
2. LICENSE
2.1 With effect from the date of Subscription and subject to payment of the Fees, the Licensor grants the Licensee a license only for the operation and execution of the Software and use of the Documentation for the duration of the Subscription period.
2.2 Subject to any provisions to the contrary, for the license granted by this EULA the following shall apply:
2.2.1 limited in time to the period specified in the transfer agreement, revocable, non-exclusive and non-transferable (unless this is in accordance with Section 12 permitted);
2.2.2 the granting of sublicenses is not permitted;
2.2.3 the Documentation serves the purpose of supporting the use of the Software by the Licensee.
2.3 The license granted by this EULA is subject to the following obligations and restrictions:
2.3.1 The Licensee must have one valid license per User.
2.3.2 In order to use UP2PARTS autoCAM, the Licensee must be in possession of a valid UP2PARTS COCKPIT license and the required Subscription per User.
2.3.3 The User must be registered by name in the Licensee’s account and must be an employee of the Licensee. The Licensee can delete existing Users in order to register new Users.
2.3.4 The Licensee or the User may not copy the Software in whole or in part or reproduce it in any way.
2.3.5 Except to the extent expressly permitted by law, Licensee or User may not modify, alter, adapt, make error corrections or in any way interfere with the Software or merge it with or into other data, programs or systems or attempt to do so.
2.3.6 Except to the extent expressly permitted by law, Licensee or User may not decompile, reverse engineer, decode and/or disassemble the Software, and Licensee may not translate and/or attempt to translate the Software into any other computer language.
2.3.7 The Licensee or the User may not allow third parties to access or use the Software.
2.3.8 The Licensee must observe the requirements for the mandatory installation and use of prescribed third-party software according to the Subscription.
2.3.9 Licensee or User may not assign, renew, sublicense, rent, lease, sell, pledge, encumber, transfer or otherwise dispose of the license granted by this EULA or the Software or Documentation, or grant or purport or attempt to grant any rights in or under the license granted by this EULA or the Software or Documentation; and
2.3.10 the Licensee or the User must notify the Licensor as soon as it becomes aware of any unauthorized access or use of the Software or the Documentation by third parties.
2.4 The Licensee is responsible for all actions and omissions of a User registered through him.
3. UPDATES
3.1 Unless otherwise agreed, the Licensor is under no obligation whatsoever:
3.1.1 provide Software updates; or
3.1.2 update the Software or Documentation.
3.2 The Licensor is under no obligation and provides no guarantee regarding the frequency of Software updates.
4. DOCUMENTATION
4.1 Licensee may use the Documentation only for the purpose of using the Software in accordance with the terms and conditions of this EULA and will not permit any third party to use the Documentation in any way.
4.2 Licensee may not copy or reproduce the Documentation or any part thereof in any manner without the prior written consent of Licensor, except that the Licensor may copy the Documentation to the extent reasonably necessary in connection with Licensee’s use of the Software as permitted by this EULA.
4.3 Licensee may not distribute Documentation to any third party except and only to the extent required by law or to its officers, directors and employees who need access to the Documentation in order to use the Software. This does not apply to Documentation,
4.3.1 that is or becomes publicly or generally available at the time such information is provided to Licensee (other than as a result of Licensee’s breach of this EULA);
4.3.2 which was already lawfully in the possession of the Licensee and was not subject to confidentiality; or
4.3.3 which the Licensee received from a third party who was entitled to pass on this Documentation without restriction.
5. LIABILITY AND COMPENSATION
5.1 The Licensor shall be liable without limitation, including for legal representatives and vicarious agents, only in the event of
5.1.1 intent or gross negligence,
5.1.2 injury to life, physical injury or health,
5.1.3 to the extent of a guarantee assumed by the Licensor and
5.1.4 under the Product Liability Act.
5.2 The liability of the Licensor for a breach of obligations that are essential for achieving the purpose of the contract is in cases of slight negligence is limited to the amount of damage that is foreseeable and typical for the type of agreement. The Licensor shall be liable for losses caused by the lack of subjective requirements up to the amount that is covered by the purpose of the request and was foreseeable for the Licensor at the time of the request. The Licensor shall only be liable for data loss up to the amount of the typical recovery costs that would have been incurred if the data had been properly and regularly backed up.
5.3 Otherwise, the Licensor shall not be liable, in particular not for damages or losses caused by incorrect operation or the use of any third-party software – or the non-use of any third-party software required according to the Subscription – that is integrated or used together with the Software or that must be integrated and used according to the Subscription. The Customer is responsible for compliance with the license conditions, the specifications in the user Documentation and the proper operation of third-party software.
5.4 The above provisions do not imply a change in the burden of proof to the detriment of the Licensor.
6. EXPORT CONTROL
The Licensee will comply with all export laws and sanctions.
7. AUDITING RIGHTS
7.1 The Licensor has the right to audit the Licensee’s and Users’ access to or use of the Software to confirm compliance with the terms of this EULA.
7.2 Any such audit shall be subject to reasonable advance notice by Licensor, and Licensor agrees that it will not unreasonably interfere with Licensee’s business activities.
7.3 The Licensee shall assist the Licensor in carrying out such an audit and, without prejudice to any other rights of the Licensor, shall remedy any infringements found during the audit.
8. TERM AND TERMINATION
8.1 In the absence of other agreements in the transfer agreement, both Parties are entitled to terminate the transfer agreement in writing with a notice period of 3 months to the end of the month.
8.2 Subject to Section 3 the Licensor may terminate this EULA by giving 7 days’ written notice to the Licensee if the Licensee fails to make a payment to the Licensor in accordance with this EULA within 14 days of the due date.
8.3 The Licensor may terminate this EULA with immediate effect by notifying the Licensee if:
8.3.1 a sanction is imposed in respect of a country or territory from which the Software, Documentation or services are exported or made available, or into which they are imported or received;
8.3.2 a sanction is imposed in relation to the Licensee or a User or in relation to a country in which the Licensee or a User is registered or operates;
8.3.3 Licensor has reasonable grounds to believe that the continued licensing of the Software or provision of any of the Services violates or would violate any Sanctions Law or Export Law; or
8.3.4 the Licensor has reasonable grounds to believe that the Licensee or a User has violated or is likely to violate a sanctions or export law;
8.3.5 if insolvency proceedings are instituted against the Licensee’s assets, if insolvency proceedings are instituted or if the institution of such proceedings is refused for lack of assets or if the license agreement is terminated by rescission, avoidance or in any other way.
8.4 Any termination must be in writing.
9. CONSEQUENCES OF EXPIRATION OF THE SUBSCRIPTION AND TERMINATION
9.1 After the termination date:
9.1.1 the following provisions remain in force: Sections 1, 5,7, 9, 13, and
9.1.2 all other rights and obligations shall cease with immediate effect (including, but not limited to, the rights and obligations set out in Section 2 granted) without prejudice to all rights, obligations, claims (including claims for damages for breach of contract) and liabilities arising prior to the termination date.
9.2 Within 30 days of the termination date, Licensor shall return to Licensee or delete all copies of Licensee’s Data in its possession or control, unless Licensor is required to retain copies for regulatory purposes, in which case Licensee shall bear the burden of proof.
10. DATA PROTECTION, DATA COLLECTION AND DATA SECURITY
10.1 Personal data is used in accordance with the data protection notice, which can be accessed at https://up2parts.com/en/privacy-policy/.
10.2 The Licensor processes personal data on behalf of the Customer. Annex 1 (Addendum on Data Processing) governs the processing of personal data and forms an integral part of this EULA.
10.3 Uploaded data is used in accordance with the EU AI Act. Annex 2 (Addendum on Data Collection and Data Security of Uploaded Data) governs the processing of uploaded data and forms an integral part of this EULA. In addition, our voluntary declaration of compliance with the transparency guidelines under the EU AI Act can be found at https://up2parts.com/en/ai-code-of-conduct/.
11. SEVERABILITY CLAUSE
Should individual provisions of this EULA be invalid, this shall not affect the validity of the remaining provisions. In this case, the Parties shall endeavor to replace the invalid provision with a valid provision that comes as close as possible to the economic meaning of the invalid provision.
12. SUBCONTRACTING
The Licensor is entitled to engage third parties to fulfill its obligations under the license agreement. The Licensor shall ensure that such third parties are bound by contractual terms and conditions that essentially correspond to those that apply to the Licensor’s obligations under this EULA.
13. APPLICABLE LAW AND JURISDICTION
13.1 This EULA, the license agreement for the Subsctiption and all non-contractual obligations arising out of or in connection with this EULA shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
13.2 The courts at the Licensor’s registered office shall have exclusive jurisdiction for all disputes arising from and in connection with the license agreement.
Appendix 1 – Addendum on Data Processing
This addendum on data protection (“Addendum”) forms part of the GTCs (referred to hereinafter as the “Main Agreement”) and amends them where applicable.
The terms used in this addendum have the meanings set out in this Addendum. Capitalized terms that are not otherwise defined here have the meanings assigned to them in the Main Agreement. With the exception of the following changes, the terms of the Main Agreement remain in full force and effect. In the event of a conflict between this Addendum and the Main Agreement, this Addendum will prevail.
1. Definitions
The following terms under this Addendum have the meanings set out below:
1.1 “Applicable Law” means (a) the laws of the European Union or of its member states governing the personal data of customers, where a Member of the Customer Group is subject to EU data protection laws; and (b) any other applicable law governing customers’ personal information, where a Member of the Customer Group is subject to the data protection laws of a different country;
1.2 “Customer Partner” means an entity that owns or controls the customer, or that has shared control or ownership with the customer. Control is defined in this context as direct or indirect ownership of the power to control or stipulate the policies of a company, whether through possession of voting securities, by contract, or otherwise;
1.3 “Member of the Customer Group” designates the customer or a subsidiary of the customer;
1.4 “Personal Customer Data” is all personal data processed by a commissioned processor on behalf of a Member of the Customer Group, in accordance with or in connection with the Main Agreement;
1.5 “Commissioned Processor” designates up2parts or a sub-processor;
1.6 “Data Protection Laws” refers to the EU data protection laws and, if applicable, the data protection laws or the privacy laws of another country;
1.7 “EU Data Protection Laws” refers to the General Data Protection Regulation of the EU 2016/679 (referred to as the “GDPR”) as amended, replaced, or superseded, including other laws designed to enact or supplement the GDPR;
1.8 “Services” mean the services and other activities provided or carried out on behalf of up2parts in accordance with the Main Agreement for Members of the Customer Group;
1.9 “Sub-processor” means any person (including third parties, but excluding employees of up2parts or any subcontractors) commissioned by or on behalf of up2parts to transfer personal data on behalf of a Member of the Customer Group in connection with the Main Agreement; and
1.10 The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing”, and “Supervisory Authority” have the same meaning as in the GDPR, and any terms related to them should be interpreted accordingly. For the purposes of up2parts, the term “Data Subject” also has the same meaning as defined in Annex 1 to the Addendum.
2. Term
2.1 This Addendum takes effect when personal customer data is first submitted and ends automatically when the Main Agreement expires or ends.
3. Security
3.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, up2parts shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including, if necessary, the measures specified in Article 32 (1) GDPR.
3.2 When assessing the appropriate level of security, up2parts will take into account the risks that arise from the processing, including, in particular, risks arising from a Personal Data Breach. up2parts will inform the customer of the measures taken if requested to do so.
3.3 All of the technical measures adopted will be adjusted to reflect technical progress and further developments. In this regard, up2parts may take alternative, appropriate measures. Any alternative measures must not result in the security level of the defined measures being reduced.
4. Data Subjects/Categories of Data
4.1 Only Personal Data belonging to the Customer’s employees will be collected, processed, or used.
4.2 The categories of the transmitted Personal Data as well as the Data Subjects affected are listed in Annex 1 to the Addendum.
4.3 No special categories of data, as defined by applicable laws, will be processed in connection with the Main Agreement.
5. Personnel
5.1 up2parts will make all reasonable efforts to ensure that (a) personnel who have access to customer data are subject to written obligations to maintain the confidentiality of this data, and (b) these personnel are appropriately trained in the proper handling of personal data.
6. Auditing Rights
6.1 The customer must notify up2parts and any Sub-processors as early as possible if it exercises any of its auditing rights under the Main Agreement. It must also reimburse up2parts and the Sub-processors for administrative costs and expenses incurred in the course of conducting and complying with such an audit.
7. Sub-processing
7.1 Subcontracting within the meaning of this Addendum does not include ancillary services, such as telecommunications services, postal/transport services, maintenance, and user support services, and other measures to ensure the confidentiality, availability, integrity, and resilience of the hardware and Software associated with data processing systems.
7.2 However, up2parts is obligated to make appropriate and legally binding contractual agreements, and to take suitable control measures in order to ensure the protection and security of the customer’s data, even where ancillary services are outsourced.
7.3 up2parts will hire the Sub-processors as listed in Annex 1 to the Addendum, and the customer hereby consents to their use. The customer hereby consents to the hiring of new Sub-processors by up2parts.
7.4 Changes to the existing subcontractor are permitted provided that up2parts informs the customer by in hard-copy or in text form with appropriate advance notice, and provided that the sub-processing is based on a contractual agreement in accordance with Article 28 (2–4) GDPR.
7.5 If the subcontractor provides the service outside the EU/EEA, up2parts must ensure compliance with the applicable laws by adopting suitable measures.
8. Processing of Customer Data
8.1 With respect to customer data covered by this Addendum, the parties agree that the customer is the Controller and up2parts is a Data Processor.
8.2 The customer must fulfill its obligations as a Controller, and up2parts must fulfill its obligations as a Data Processor, in accordance with the Main Agreement and this Addendum.
8.3 up2parts will process customer data only to fulfill its obligations under the Main Agreement, such as, but not limited to, the provision of the service, the detection, prevention, and resolution of security and technical problems, and answering support inquiries.
8.4 Customer data will only be processed within the framework of the Main Agreement and in accordance with the customer’s instructions.
8.5 up2parts will inform the customer of all reasonable costs it incurs in complying with the customer’s instructions where the instructions go beyond the agreed services in accordance with the Main Agreement; up2parts is only obligated to follow such instructions if the customer agrees to reimburse these costs. In particular, the collected, processed, or used data may only be rectified, erased, or restricted in accordance with the customer’s instructions.
8.6 Backup copies will be created if they are necessary to ensure proper data processing, or if they are required for reproduction processes that are necessary to ensure compliance with statutory retention requirements.
8.7 All instructions must be given in writing. If this is not possible in individual cases, then the customer must provide up2parts with verbal instructions and confirm these instructions in writing.
9. Requests to access data
9.1 up2parts will support the customer in an appropriate manner in fulfilling the obligation to respond to requests from Data Subjects to rectify, transfer, or erase personal data that is stored on the up2parts platform and used to provide the services.
9.2 If the data subject requests the rectification or erasure of their personal data directly from up2parts, up2parts will immediately forward this request to the customer.
9.3 The customer shall reimburse up2parts for the reasonable costs incurred by complying with this provision in accordance with up2parts’ agreed or current rate for professional services.
10. Assistance, reporting, and impact assessments
up2parts will offer the customer adequate support in fulfilling its obligations relating to the security of personal data, reporting obligations in the event of data breaches, data protection impact assessments, and prior consultations, in accordance with Articles 32 to 36 GDPR.
11. Reporting a Breach
11.1 Unless the notice is delayed by the actions or demands of a law enforcement agency, up2parts must immediately inform the customer’s support contacts about any unauthorized acquisition, access, use, disclosure, or destruction of customer data (a “breach”) after up2parts has determined that a breach has occurred.
11.2 Unless such notice is prohibited by a law enforcement agency as part of an investigation, up2parts shall disclose information about the nature and consequences of the breach in order that the customer may reasonably contact Data Subjects, government agencies, and/or credit bureaus. The customer has sole control over the content of the customer data that it enters into the subscription service and is solely responsible for deciding whether to notify Data Subjects and the relevant regulatory authorities or enforcement bodies, as well for providing such notice.
11.3 The customer must ensure that the support points of contact named in the up2parts customer support portal are up-to-date and ready to receive any notice of a breach from up2parts.
12. Return and Erasure of Customer Data
12.1 up2parts must delete all copies of the company’s processed Personal Data immediately as of the date of the discontinuation of services, or arrange for the erasure of this data, unless a Member of the Customer Group issues an instruction stipulating otherwise.
12.2 up2parts may continue to store personal company data to the extent required by the applicable laws, and only to the extent required by the applicable laws and for the period required by the applicable laws. However, it may only do so provided that up2parts guarantees that all of this personal company data will remain confidential and ensures that this personal company data is only processed as is necessary for the purposes specified in the applicable laws that require such storage, and not for any other purpose.
13. Liability
The liability of up2parts arising from or in connection with this Addendum is subject to the provisions of the Main Agreement.
14. General Conditions
14.1 Applicable law and jurisdiction
The parties to this Addendum hereby submit to the jurisdiction specified in the Main Agreement for any dispute or claim arising in any way out of this Addendum, including any dispute over its existence, validity, or termination, or the consequences of its being shown to be null and void.
14.2 Order of precedence
14.2.1 Nothing in this Addendum reduces the obligations of up2parts under the Main Agreement in relation to the protection of Personal Data, or allows up2parts to process (or permit the processing of) Personal Data in a way that is prohibited under the Main Agreement.
14.2.2 In the event of any conflict between the provisions of this Addendum and other agreements between the parties, including the Main Agreement and (unless expressly agreed otherwise in writing and signed on behalf of the parties) including agreements entered into or alleged to be have been entered into after the date of this Addendum, the provisions of this Addendum will prevail.
15. Severability Clause
If any provision of this Addendum is shown to be invalid or unenforceable, this will not affect the validity and effectiveness of the remaining provisions of this Addendum. The invalid or unenforceable provision will either (i) be amended as necessary to ensure its validity and enforceability, preserving the intentions of the parties as far as possible, or, if this is not possible, (ii) be interpreted as if the invalid or unenforceable part of the provision had never been included.
Appendix 1 – Addendum to Data Processing, Sub-appendix
1. Data Subjects
The transmitted personal data relate to the following categories of Data Subjects:
End users who are employees of customers, or other Data Subjects who have been given permission to use the Software.
2. Categories of Data
The transmitted Personal Data relate to the following categories of data:
Usernames, passwords, names, e-mail addresses, and data uploaded by the customer and user
3. Sub-processor
- Name: Microsoft Ireland Operations Ltd, One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521, Irland
Type of Service: Hosting - Name: 84codes AB, Hälsingegatan 49, 113 31 Stockholm
Type of Service: Message Broker - Name: Auth0, 10800 NE 8th, St Suite 700 Bellevue, WA 98004
Type of Service: Tenant Authorization - Name: Mailgun Technologies Inc
Type of Service: E-Mail Dispatch - Name: Atlassian Pty Ltd, c/o Atlassian, Inc., 350 Bush Street, Floor 13, San Francisco, CA 94104
Type of Service: Service Provider - Name: Hotjar Ltd, Dragonara Business Centre, 5th Floor, Dragonara Road, Paceville St. Julian’s STJ 3141, Malta
Type of Service: Web Analytics
Appendix 2 – Addendum on Data Collection and Data Security of Uploaded Data
1. The Licensee shall ensure that it has all necessary rights for all user content uploaded to the up2parts servers.
2. The Licensor is entitled to temporarily block any Licensee or User immediately if there is reasonable suspicion that the uploaded data is illegal and/or infringes the rights of third parties. A reasonable suspicion of illegality and / or infringement of rights exists in particular if courts, authorities and / or other third parties inform the Licensor of this. The Licensor shall immediately inform the Licensee of the blocking and the reason for it. The blocking of the user will be lifted as soon as the suspicion is invalidated.
3. The use of uploaded data is in accordance with the EU AI Act. Information on contact persons and measures can be found in the voluntary AI Code of Conduct under https://up2parts.com/en/ai-code-of-conduct/ Further information on data protection, in particular the declarations on the processing of customer data and sub-processors and thus the storage location of the uploaded data, can be found Annex 1 (Addendum on Data Processing).
Sub-processors for the storage of uploaded data:
Name: Microsoft Ireland Operations Ltd, One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521, Irland
Type of service: Hosting
4. As part of the licensor’s services, AI models are trained individually for each licensee. The uploaded data is used exclusively to create, adapt and optimize the predictions for the licensee. Data relevant for model training and logics are made known to the user in the product manual and when using the software. Personal data is excluded from processing in AI models.
5. To ensure the functionality and stability of the software, the AI models (e.g. training success, prediction accuracy) are monitored by the licensor. For this purpose, uploaded data is evaluated statistically and in an appropriate manner.
6. The licensor ensures that data processing is strictly licensee-specific and that no uploaded data is exchanged or mixed between different licensees. Exceptions to this are possible in individual agreements. The storage of data released for research and development is appropriately separated from the uploaded data in the software.
7. Backup copies are created if they are necessary to ensure proper data processing and data recovery.
8. The licensor is entitled to use the uploaded data to improve the software, e.g. through statistical analysis and comparison of different model results. The authorization expires if the data is deleted as part of the termination.
9. Uploaded data is archived for the functionality of the software (e.g. AI model training). Deletion only takes place as part of the termination.